Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section: (a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation; (b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower; (c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower; (d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base; (e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount; (f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and (g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 5 contracts
Sources: Senior Secured Revolving Credit Agreement (Stellus Capital Investment Corp), Senior Secured Revolving Credit Agreement (Stellus Capital Investment Corp), Senior Secured Revolving Credit Agreement (Stellus Capital Investment Corp)
Fundamental Changes. The Borrower will notMerge into or consolidate with any other Person, nor will it or permit any of the Subsidiary Guarantors to, enter other Person to merge into any transaction of merger or consolidation or amalgamationconsolidate with it, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, any part ) all or substantially all of its assetsassets (in each case, whether now owned or hereafter acquired), but excluding or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(ai) any Subsidiary Guarantor of the any Borrower may be merged or consolidated with or merge into such Borrower in a transaction in which such Borrower is the Borrower surviving entity, (ii) any Subsidiary of Holdings may merge into Holdings or any other Subsidiary Guarantor; of Holdings (provided that (A) if Kmart Corp. is a party to such merger, such merger shall be with Holdings, Kmart or a direct Subsidiary of Kmart Corp. and Kmart Corp. shall be the continuing or surviving entity, (B) if any such transaction shall be between a Subsidiary Guarantor and is a wholly owned Subsidiary Guarantorparty to such merger (other than with a Borrower or Holdings), the wholly owned such Subsidiary Guarantor shall be the continuing or surviving corporation;
entity or the continuing or surviving entity shall become a Subsidiary Guarantor and (bC) if SRAC is a party to such merger, then Sears shall comply with the requirements of Section 6.01(d)), (iii) any Subsidiary Guarantor of Holdings other than the Borrower Borrowers may sell, leasetransfer, transfer lease or otherwise dispose of any or all of its assets to any Borrower, to Holdings or to a Subsidiary of Holdings (upon voluntary liquidation provided that if such sale or otherwise) to transfer includes Collateral and the transferee is not the Borrower or any wholly owned Holdings, the transferee shall be a Subsidiary Guarantor of the Borrower;
Guarantor), (civ) the capital stock of any Subsidiary of Holdings other than the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors Borrowers may sell, transfer transfer, lease or otherwise dispose of Investments its assets to a Person that is not a Subsidiary through transactions which are undertaken in the ordinary course of its business or determined by Holdings or the Borrowers in good faith to be in the best interests of Holdings, the Borrowers and their Subsidiaries, (v) any Subsidiary of Holdings other than to a Financing Subsidiarythe Borrowers (except, in the case of SRAC, as provided in Section 6.01(d)) so long as after giving effect to such sale, transfer may liquidate or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base dissolve if Holdings and the Borrower delivers Borrowers determine in good faith that such liquidation or dissolution is in the best interests of Holdings, the Borrowers and their Subsidiaries and is not materially disadvantageous to the Administrative Agent a certificate of a Financial Officer to such effect Lenders, and (iivi) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount Holdings or any Subsidiary of Holdings may merge with a Person that is not a Subsidiary of Holdings immediately prior to such release is not diminished merger if, in the case of any merger involving Holdings, a Borrower or a Subsidiary Guarantor, Holdings, such Borrower or such Subsidiary Guarantor, as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower applicable, is the continuing or surviving entity or, in such transaction and (ii) at the time thereof and after giving effect theretocase of any merger involving a Subsidiary Guarantor, no Default the continuing or surviving entity shall have occurred or be continuing; and
(g) the Borrower and each of the become a Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 Guarantor in any fiscal yearaccordance with Section 6.01(i)(ii).
Appears in 4 contracts
Sources: Credit Agreement (Sears Holdings Corp), Credit Agreement (Sears Holdings Corp), Credit Agreement (Sears Holdings Corp)
Fundamental Changes. The Borrower will notnot merge into or consolidate or amalgamate with any other Person, nor will it or permit any other Person to merge into or consolidate or amalgamate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the Subsidiary Guarantors toassets of the Borrower and its Subsidiaries, enter into any transaction of merger or consolidation or amalgamationtaken as a whole, or liquidate, wind up liquidate or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Persondissolve, except for purchases that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(a) the Borrower may merge, consolidate or acquisitions amalgamate into another Person; provided that the Borrower shall be the continuing or surviving Person; and
(b) the Borrower may merge, consolidate or amalgamate into or sell, transfer, lease or otherwise dispose of Investments and other all or substantially all the assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries taken as a whole to another Person; provided that (i) the resulting, surviving or transferee Person (the “Successor Borrower”) is a corporation, limited liability company or partnership organized and not validly existing under the laws of Bermuda, England and Wales or the United States of America or any state thereof or the District of Columbia, (ii) the Successor Borrower executes, prior to or contemporaneously with the consummation of such transaction, such agreements, if any, as are in violation the reasonable opinion of the terms and conditions Administrative Agent, necessary to evidence the assumption by the Successor Borrower of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any liability for all of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities obligations of the Borrower hereunder and its Subsidiaries) the other Loan Documents and (y) subject to expressly assumes all of the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor obligations of the Borrower may be merged or consolidated with or into under the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary GuarantorLoan Documents, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(ciii) the capital stock of any Subsidiary of the Successor Borrower may shall cause to be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers delivered to the Administrative Agent a certificate and the Lenders such legal opinions (which may be from in-house counsel) as any of a Financial Officer to such effect and them may reasonably request in connection with the matters specified in the preceding clause (ii) either and (xiv) the amount by which Successor Borrower shall provide such information as each Lender or the Borrowing Base exceeds Administrative Agent reasonably requests in order to perform its “know your customer” due diligence with respect to the Covered Debt Amount immediately prior to such release is not diminished Successor Borrower, including a Beneficial Ownership Certification if the Successor Borrower qualifies as a result of such release or (y) “legal entity customer” under the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearBeneficial Ownership Regulation.
Appears in 4 contracts
Sources: Credit Agreement (IHS Markit Ltd.), Credit Agreement (IHS Markit Ltd.), Credit Agreement (IHS Markit Ltd.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve or divide itself (or suffer any liquidation or dissolutiondissolution or division). The Borrower will not reorganize under the laws of a jurisdiction other than any jurisdiction in the United States. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock Capital Stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (w) any transaction permitted under Section 6.05 or 6.12, (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash Cash and Cash Equivalents in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or (subject to the conditions set forth in clause (f) below) into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower Obligor may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock Capital Stock of any Subsidiary of the Borrower may be sold, transferred (including a deemed transfer resulting from a division or plan of division) or otherwise disposed of (including by way of consolidation or merger)
(i) to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerBorrower or (ii) so long as such transaction results in an Obligor receiving the proceeds of such disposition, to any other Person, provided, that in the case of this clause (ii), if such Subsidiary is a Subsidiary Guarantor or holds any Portfolio Investments, the Borrower would not have been prohibited from disposing of any such Portfolio Investments to such other Person under any other term of this Agreement;
(d) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose Dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition Disposition (and any concurrent acquisitions of Investments by the Obligors or payment of outstanding LoansIndebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose Dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition Disposition (and any concurrent acquisitions of Investments by the Obligors or payment of outstanding LoansIndebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release Disposition is not diminished as a result of such release Disposition or (y) the Borrowing Base immediately after giving effect to such release Disposition is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with (or acquire all or substantially all of the assets of) any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect theretothereto (and any concurrent acquisitions of Investments by the Borrower or payment of outstanding Indebtedness that is included in the Covered Debt Amount at such time), no Default shall have occurred or be continuing; andprovided that, in no event shall the Borrower enter in any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States;
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose Dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer transfers and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year; and
(h) the Obligors may dissolve or liquidate (i) any Immaterial Subsidiary or (ii) any other Subsidiary so long as (x) in connection with such dissolution or liquidation, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to an Obligor and (y) such dissolution or liquidation is not materially adverse to the Lenders and the Borrower determines in good faith that such dissolution or liquidation is in the best interests of the Borrower.
Appears in 3 contracts
Sources: Senior Secured Revolving Credit Agreement (North Haven Private Income Fund LLC), Senior Secured Revolving Credit Agreement (North Haven Private Income Fund LLC), Senior Secured Revolving Credit Agreement (North Haven Private Income Fund LLC)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including, without limitation, Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (other than the Financing Subsidiaries) (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries (other than the Financing Subsidiaries)) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) any Subsidiary of the Borrower may be liquidated or dissolved; provided that (i) in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower and (ii) the Borrower determines in good faith that such liquidation is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(d) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(de) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Collateral Base;
(ef) the Obligors may sell, transfer or otherwise dispose of Investments Portfolio Investments, Cash and Cash Equivalents to a Financing Subsidiary so long as (i) prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Collateral Base and no Default exists and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect effect, and (ii) either (x) the amount by which the Borrowing Collateral Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Collateral Base immediately after giving effect to such release is at least 110120% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 3 contracts
Sources: Senior Secured Term Loan Credit Agreement (Medley Capital Corp), Senior Secured Term Loan Agreement (Medley Capital Corp), Term Loan Credit Agreement (Medley Capital Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including, without limitation, Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (other than the Financing Subsidiaries) (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries (other than the Financing Subsidiaries)) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) any Subsidiary of the Borrower may be liquidated or dissolved; provided that (i) in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower and (ii) the Borrower determines in good faith that such liquidation is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(d) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(de) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base;
(ef) the Obligors may sell, transfer or otherwise dispose of Investments Portfolio Investments, Cash and Cash Equivalents to a Financing Subsidiary so long as (i) prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and no Default exists and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect effect, and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110120% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 3 contracts
Sources: Senior Secured Revolving Credit Agreement (Medley Capital Corp), Senior Secured Revolving Credit Agreement (Medley Capital Corp), Revolving Credit Agreement (Medley Capital Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose Dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) either (x) the Covered Debt Amount does not exceed the Borrowing BaseBase or (y) if the Administrative Agent consents in writing, the amount by which the Covered Debt Amount exceeds the Borrowing Base is reduced thereby;
(e) the Obligors may sell, transfer or otherwise dispose Dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and;
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year; and
(h) the Obligors may transfer assets to a Financing Subsidiary for the sole purpose of facilitating the transfer of assets from one Financing Subsidiary (or a Subsidiary that was a Financing Subsidiary immediately prior to such disposition) to another Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”), provided that (i) no Default exists or is continuing at such time, (ii) the Covered Debt Amount shall not exceed the Borrowing Base at such time and (iii) the Transferred Assets were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day that such assets are transferred by such Obligor to the transferee Financing Subsidiary.
Appears in 3 contracts
Sources: Senior Secured Revolving Credit Agreement (Goldman Sachs BDC, Inc.), Senior Secured Revolving Credit Agreement (Goldman Sachs BDC, Inc.), Senior Secured Revolving Credit Agreement (Goldman Sachs BDC, Inc.)
Fundamental Changes. (a) The Borrower will not, nor and will it not permit any of the Subsidiary Guarantors its Subsidiaries to, enter merge into or consolidate into any transaction of merger or consolidation or amalgamationother Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any other Person to merge into or consolidate with any such Person, or acquire all or substantially all of the Subsidiary Guarantors to, acquire any business Capital Stock or property fromof another Person, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of (in a single transaction or a series of transactions) all or substantially all of any of their respective assets (in each case, whether now owned or hereafter acquired) or all or substantially all of the stock of any of their Subsidiaries (in each case, whether now owned or hereafter acquired) or liquidate or dissolve, other than: (i) a merger or consolidation among the Borrower and one or more of its assets (upon voluntary liquidation or otherwise) to Subsidiaries, provided that the Borrower is the surviving corporation, or any wholly owned Subsidiary Guarantor (ii) a merger or consolidation solely between or among two or more Subsidiaries of the Borrower;
, provided that if American Southern or Bankers Fidelity Life is involved in such merger or consolidation, American Southern or Bankers Fidelity Life, as applicable, is the surviving corporation, or (ciii) in connection with an Acquisition permitted hereunder effected by a merger in which the Borrower, American Southern, Bankers Fidelity Life or, in a merger in which the Borrower, American Southern or Bankers’ Fidelity Life is not a party, a Subsidiary of the Borrower is the surviving entity, or (iv) the capital stock liquidation or dissolution of any Subsidiary of the Borrower may be sold, (other than American Southern or Bankers Fidelity Life) so long as either (A) such Subsidiary owns no assets at the time of such liquidation or dissolution or (B) any assets owned by such Subsidiary are transferred or otherwise disposed of to the Borrower or any wholly owned another Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is liquidation or dissolution.
(b) The Borrower will not, and will not diminished as a result permit any of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% its Subsidiaries to, engage in any business other than businesses of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) type conducted by the Borrower and each of its Subsidiaries on the Subsidiary Guarantors may sell, lease, transfer date hereof and businesses reasonably related or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearancillary thereto.
Appears in 3 contracts
Sources: Revolving Credit Agreement (Atlantic American Corp), Revolving Credit Agreement (Atlantic American Corp), Revolving Credit Agreement (Atlantic American Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than any SPE Subsidiaries or Immaterial Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than any Financing Subsidiaries or Immaterial Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than any Financing Subsidiaries or Immaterial Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash and dispositions of investments in connection with exits and work-outs in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this Section). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that (i) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing, (ii) if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between the Borrower and a Subsidiary Guarantor, the Borrower shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such salePortfolio Investments, transfer or other disposition (Cash and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments Cash Equivalents to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition release (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect to the Administrative Agent and (ii) either (x) the amount by which of any excess availability under the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(fe) the Borrower or any Subsidiary may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; andcontinuing and provided that (i) if any such transaction shall be between the Borrower and another Person, the Borrower shall be the continuing or surviving corporation, (ii) if any such transaction shall be between a wholly-owned Subsidiary Guarantor and another Person (other than the Borrower), a wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between a Subsidiary Guarantor and another Person (other than the Borrower or a wholly-owned Subsidiary Guarantor), a Subsidiary Guarantor shall be the continuing or surviving corporation;
(gf) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year;
(g) any Subsidiary may voluntarily dissolve or liquidate if such Subsidiary that does not own, legally or beneficially, assets which in aggregate have a value of $500,000 or more at such time of dissolution or liquidation; and
(h) the Borrower or the other Obligors may dissolve or liquidate any SBIC Subsidiary; provided that no portion of any Indebtedness or any other obligations (contingent or otherwise) of such SBIC Subsidiary (a) is, or would as a result of dissolution or liquidation hereunder become, recourse to or obligate the Borrower or any other Obligor (other than any SBIC Subsidiary) in any way, or (b) subjects, or would as a result of the dissolution or liquidation hereunder subject, any property of the Borrower or any other Obligor (other than any SBIC Subsidiary) to the satisfaction of such Indebtedness.
Appears in 3 contracts
Sources: Senior Secured Revolving Credit Agreement (BlackRock Capital Investment Corp), Senior Secured Revolving Credit Agreement (BlackRock Capital Investment Corp), Senior Secured Revolving Credit Agreement (BlackRock Capital Investment Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, its Subsidiaries (other than Financing Subsidiaries and Immaterial Subsidiaries) to enter into any transaction of merger merger, consolidation, division or consolidation amalgamation or amalgamation, or to liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, its Subsidiaries (other than Financing Subsidiaries and Immaterial Subsidiaries) to acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries and Immaterial Subsidiaries) to, convey, sell, lease, transfer transfer. divide or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash and dispositions of investments in connection with exits and work-outs (including assets abandoned for no consideration if the Borrower determines such assets have no value) in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this Section). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that (i) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing, (ii) if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between the Borrower and a Subsidiary Guarantor, the Borrower shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower Obligor may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect to the Administrative Agent; provided however, if the Borrowing Base is at least 150% of the Covered Debt Amount as of the last day of the monthly accounting period ending immediately prior to such sale, transfer or disposition, as evidenced in the Borrowing Base Certificate most recently delivered by the Borrower pursuant to Section 5.01(d), then the certificate of a Financial Officer referred to in this clause (i) shall be delivered no later than the last day of the calendar month in which such sale, transfer or disposition occurs, and (ii) either (x) the amount by which of any excess availability under the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release sale, transfer or other disposition is not diminished as a result of such release sale, transfer or other disposition or (y) the Gross Borrowing Base immediately after giving effect to such release sale, transfer or other disposition is at least 110% of the Covered Debt Amount;
(fe) the Borrower or any Subsidiary may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; andcontinuing and provided that (i) if any such transaction shall be between the Borrower and another Person, the Borrower shall be the continuing or surviving corporation, (ii) if any such transaction shall be between a wholly-owned Subsidiary Guarantor and another Person (other than the Borrower), a wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between a Subsidiary Guarantor and another Person (other than the Borrower or a wholly-owned Subsidiary Guarantor), a Subsidiary Guarantor shall be the continuing or surviving corporation;
(gf) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 25,000,000 in any fiscal year; and
(g) the Borrower or the other Obligors may dissolve or liquidate (i) any Subsidiary that does not own, legally or beneficially, assets which in aggregate have a value of $500,000 or more at such time of dissolution or liquidation or (ii) any SBIC Subsidiary, provided that no portion of any Indebtedness or any other obligations (contingent or otherwise) of such SBIC Subsidiary (A) is, or would as a result of dissolution or liquidation hereunder become, recourse to or obligate the Borrower or any other Obligor (other than any SBIC Subsidiary) in any way, or (B) subjects, or would as a result of dissolution or liquidation hereunder subject, any property of the Borrower or any other Obligor (other than any SBIC Subsidiary) to the satisfaction of such Indebtedness.
Appears in 3 contracts
Sources: Senior Secured Credit Agreement (SLR Investment Corp.), Senior Secured Credit Agreement (SLR Investment Corp.), Senior Secured Credit Agreement (Solar Capital Ltd.)
Fundamental Changes. The Borrower will not, nor and will it not permit any of the Subsidiary Guarantors Secured Loan Party to, enter into any transaction of merger or merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, Dispose of all or be a party to any acquisition of, any Personsubstantially all of its property or business, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Sectionthat:
(a) any Subsidiary Guarantor of the Borrower may be merged merged, consolidated or consolidated amalgamated with or into the Borrower or any other Subsidiary Guarantor; (provided that if any such transaction the Borrower shall be between a the continuing or surviving corporation) or with or into any Wholly Owned Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, (provided that (i) the wholly owned Wholly Owned Subsidiary Guarantor shall be the continuing or surviving corporationcorporation and (ii) any Excluded Subsidiary may merge, consolidate or amalgamate with any other Excluded Subsidiary);
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose Dispose of any or all of its assets (upon voluntary liquidation or otherwisei) to the Borrower or any wholly owned Wholly Owned Subsidiary Guarantor (upon voluntary liquidation, winding up, dissolution or otherwise) or (ii) pursuant to a Disposition that does not result in a Disposition of all or substantially all of the Borrowerproperty or business of the Secured Loan Parties, taken as a whole;
(c) the capital stock of Borrower or any Subsidiary thereof may be merged, consolidated or amalgamated with a Person, provided that (i) the Borrower or such Subsidiary is the continuing or surviving corporation and (ii) the shareholders of the Borrower may be soldor such Subsidiary immediately prior to such merger, transferred consolidation or otherwise disposed of to amalgamation hold the Borrower or any wholly owned Subsidiary Guarantor majority of the BorrowerCapital Stock of the entity that results from such merger, consolidation or amalgamation;
(d) the Obligors Borrower or any Subsidiary thereof may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and make any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does Disposition not exceed the Borrowing Baseprohibited by Section 8.04 hereof;
(e) the Obligors any De Minimis Subsidiary may sell, transfer voluntarily liquidate or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers dissolve to the Administrative Agent a certificate extent the board of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result directors of such release or (y) De Minimis Subsidiary deems it to be in its best interest and to the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;extent doing so would not have a Material Adverse Effect.
(f) Borrower, Holdings, Canadian New Holdings and Canadian Acquisitionco may effect one or more Permitted Restructuring Transactions at any time and, where applicable, from time to time following the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearRestatement Date.
Appears in 3 contracts
Sources: Loan Agreement, Loan Agreement (Chrysler Group LLC), Loan Agreement (Chrysler Group LLC)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter Enter into any transaction of merger or merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it or permit any of the Subsidiary Guarantors to, acquire any business or property fromchange to its organizational structure, or capital stock of, Dispose of all or be a party to any acquisition of, any Personsubstantially all of its property or business, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Sectionthat:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower provided, that the Borrower shall be the continuing or surviving corporation) or with or into any Wholly Owned Subsidiary Guarantor (provided, that the Wholly Owned Subsidiary Guarantor shall be the continuing or surviving corporation);
(b) any Subsidiary of the Borrower that is not a Subsidiary Guarantor, nor a Subsidiary of a Subsidiary Guarantor, may be merged or consolidated with or into any other Subsidiary of the Borrower that is not a Subsidiary Guarantor; provided provided, that if any one Subsidiary to such transaction shall be between merger or consolidation is a Subsidiary Guarantor and a wholly owned Subsidiary GuarantorWholly Owned Subsidiary, the wholly owned Wholly Owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(bc) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose Dispose of any or all of its assets (upon voluntary liquidation or otherwisei) to the Borrower or any wholly owned Wholly Owned Subsidiary Guarantor (upon voluntary liquidation or otherwise), (ii) to a Subsidiary that is not a Subsidiary Guarantor if the Subsidiary making the Disposition is not a Subsidiary Guarantor or (iii) pursuant to a Disposition permitted by Section 6.5, and upon the occurrence of any of the Borrower;
foregoing events described in clause (ci), (ii) or (iii), the capital stock of any disposing Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrowerdissolved;
(d) the Obligors any Investment expressly permitted by Section 6.8 may sellbe structured as a merger, transfer consolidation or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;amalgamation; and
(e) solely in contemplation of an IPO, the Obligors may sellconsummation of any Holdings Transaction; provided, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as that in each case, (i) after giving effect to such saleno Default or Event of Default has occurred and is continuing or would result therefrom, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either such Holdings Transaction shall not cause the Borrower and its Subsidiaries, or any of their respective assets, to be subject to any current or reasonably foreseeable material tax liabilities, (xiii) such Holdings Transaction shall not have a Material Adverse Effect, (iv) in the case of the UPREIT Restructuring, OpCo shall become a party to this Agreement and the Guarantee and Collateral Agreement pursuant to a Joinder, in each case on terms reasonably satisfactory to the Lenders, (v) Holdings shall enter into the Holdings Agreement on terms reasonably satisfactory to the Lenders, (vi) the amount by which IPO Company, as applicable, shall enter into the Borrowing Base exceeds Holdings Agreement on terms reasonably satisfactory to the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or Lenders, and (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(fvii) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred provided to the Lenders all information and documentation, including, without limitation, any legal opinions of one or be continuing; and
(g) more counsel to a Group Member, with respect to such Holdings Transaction, the Borrower and Holdings Agreement, this Agreement, each of the Subsidiary Guarantors may sellJoinder or otherwise, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of Lenders may reasonably request, and all such sales, leases, transfer information and dispositions does not exceed $5,000,000 in any fiscal yeardocumentation shall be reasonably satisfactory to the Lenders.
Appears in 2 contracts
Sources: Subordinated Credit Agreement (Virgin Mobile USA, Inc.), Subordinated Credit Agreement (Virgin Mobile USA, Inc.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, its Subsidiaries (other than Financing Subsidiaries) to enter into any transaction of merger or merger, consolidation or amalgamation, amalgamation or to liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, its Subsidiaries (other than Financing Subsidiaries) to acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash and dispositions of investments in connection with exits and work-outs (including assets abandoned for no consideration if the Borrower determines such assets have no value) in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this Section). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that (i) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing, (ii) if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between the Borrower and a Subsidiary Guarantor, the Borrower shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition release (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect to the Administrative Agent and (ii) either (x) the amount by which of any excess availability under the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(fe) the Borrower or any Subsidiary may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuingcontinuing and provided that (i) if any such transaction shall be between the Borrower and another Person, the Borrower shall be the continuing or surviving corporation, (ii) if any such transaction shall be between a wholly-owned Subsidiary Guarantor and another Person (other than the Borrower), a wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between a Subsidiary Guarantor and another Person (other than the Borrower or a wholly-owned Subsidiary Guarantor), a Subsidiary Guarantor shall be the continuing or surviving corporation; and
(gf) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 25,000,000 in any fiscal year.
Appears in 2 contracts
Sources: Senior Secured Term Loan Agreement (Solar Capital Ltd.), Senior Secured Revolving Credit Agreement (Solar Capital Ltd.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve or divide itself (or suffer any liquidation liquidation, dissolution or dissolutiondivision). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock Capital Stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (w) any transaction permitted under Section 6.05 or 6.12, (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash Cash and Cash Equivalents in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock Capital Stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of (including by way of consolidation or merger)
(i) to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerBorrower or (ii) so long as such transaction results in an Obligor receiving the proceeds of such disposition, to any other Person, provided, that in the case of this clause (ii), if such Subsidiary is a Subsidiary Guarantor or holds any Portfolio Investments, the Borrower would not have been prohibited from disposing of any such Portfolio Investments to such other Person under any other term of this Agreement;
(d) the Obligors may sell, transfer or otherwise dispose Dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) Loans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) sum of the Covered Debt Amount plus the Net Revolving Exposure does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose Dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) Loans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the sum of the Covered Debt Amount plus the Net Revolving Exposure does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the sum of the Covered Debt Amount plus the Net Revolving Exposure immediately prior to such release sale, transfer or other disposition is not diminished as a result of such release sale, transfer or other disposition or (y) the Borrowing Base immediately after giving effect to such release sale, transfer or other disposition is at least 110% of the sum of the Covered Debt AmountAmount plus the Net Revolving Exposure;
(f) the Borrower may merge or consolidate with (or acquire all or substantially all of the assets of) any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect theretothereto (and any concurrent acquisitions of Portfolio Investments by the Borrower or payment of outstanding Loans), no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year; provided that, in no event shall the Borrower enter in any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (AG Twin Brook Capital Income Fund), Senior Secured Revolving Credit Agreement (AG Twin Brook Capital Income Fund)
Fundamental Changes. (a) The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, enter merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of its assets, or any of its Borrowing Base Properties or any of the Equity Interests of any Restricted Subsidiary (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, the Borrower or any Restricted Subsidiary may sell Hydrocarbons produced from its Oil and Gas Interests in the ordinary course of business, and if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Restricted Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity, (ii) any Restricted Subsidiary may merge into any other Restricted Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary, (iii) any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of merger its assets to the Borrower or consolidation or amalgamationto another Restricted Subsidiary, or liquidate, wind up (iv) any Restricted Subsidiary may liquidate or dissolve itself if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of equipment and related items in the ordinary course of business, that are obsolete or no longer necessary in the business of the Borrower or any of its Restricted Subsidiaries or that is being replaced by equipment of comparable value and utility, (vi) the Borrower or any Restricted Subsidiary may sell, transfer or otherwise dispose of the Excluded Properties; (vii) the Borrower or any Restricted Subsidiary may sell, transfer, lease, exchange, abandon or otherwise dispose of Borrowing Base Properties with a value not exceeding, in the aggregate for the Borrower and its Restricted Subsidiaries taken, as a whole, 5% of the Borrowing Base between scheduled redeterminations as determined pursuant to the terms of the Revolving Facility Documents (or suffer any liquidation or dissolutionif the Revolving Facility has been terminated, as determined by the Administrative Agent in substantially the same manner as set forth in the Revolving Facility Documents). Notwithstanding the foregoing, the Borrower or any Restricted Subsidiary may sell, transfer, lease, exchange, abandon or otherwise dispose of Borrowing Base Properties not otherwise permitted pursuant to the foregoing clause (vii) provided that (A) the consideration received in respect of such sale or other disposition shall be equal to or greater than the fair market value of the Borrowing Base Properties, interest therein or Restricted Subsidiary subject to the sale or other disposition (as reasonably determined by, in the case of any sale or disposition of the Borrowing Base Properties with a value equal to or greater than $15,000,000) the Board of Directors of the Borrower and, if requested by the Administrative Agent, the Borrower shall deliver a certificate of a Financial Officer certifying to that effect), (B) 100% of the consideration for such sale or other disposition shall be in the form of cash or Permitted Investments and (C) except for the Net Cash Proceeds from the sale or other disposition of the Excluded Properties, an amount equal to 100% of the Net Cash Proceeds received from such sale or other disposition shall be used within 90 days of such disposition (1) to acquire property, plant and equipment or any business entity used or useful in carrying on the business of the Borrower and its Restricted Subsidiaries and having a fair market value at least equal to the fair market value of the properties sold or otherwise disposed of or to improve or replace any existing property of the Borrower and its Restricted Subsidiaries used or useful in carrying on the business of the Borrower and its Restricted Subsidiaries (the “Reinvestment Deferred Amount”), (2) to repay Indebtedness under the Revolving Facility (with a corresponding permanent reduction of the commitments thereunder) or (3) to prepay the Loans. For purposes of the foregoing clause (vi), the value of any Oil and Gas Interests included in the Borrowing Base Properties shall be as determined pursuant to the terms of the Revolving Facility Documents (or if the Revolving Facility has been terminated, as determined by the Administrative Agent in substantially the same manner as set forth in the Revolving Facility Documents).
(b) The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, acquire engage to any material extent in any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course than businesses of the day-to-day business activities of type conducted by the Borrower and its Restricted Subsidiaries and not in violation on the date of the terms and conditions execution of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (the Transactions and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect businesses reasonably related thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 2 contracts
Sources: Senior Term Credit Agreement (Exco Resources Inc), Senior Term Credit Agreement (Exco Resources Inc)
Fundamental Changes. The Borrower Company will not, nor will it the Company permit any of the Subsidiary Guarantors its Subsidiaries (other than an Immaterial Subsidiary) to, enter merge into or consolidate with any transaction of merger or consolidation or amalgamationother Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of other Person to merge into or consolidate with the Subsidiary Guarantors to, acquire any business Company or property fromits Subsidiaries, or capital stock ofsell, or be a party to any acquisition oftransfer, any Person, except for purchases or acquisitions of Investments lease (other than leases and other assets charters in the normal ordinary course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer business) or otherwise dispose of, of (in one transaction or in a series of transactions, ) all or any substantial part of the assets of the Company, or all or any substantial part of the stock of any of its assetsSubsidiaries (in each case, whether now owned or hereafter acquired), but excluding (x) assets (other than Investments) sold or disposed of in liquidate or dissolve, except that, if at the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower time thereof and its Subsidiaries) immediately after giving effect thereto no Default shall have occurred and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Sectionbe continuing:
(a1) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or merge into the Borrower or any other Subsidiary Guarantor; provided that if any such Company in a transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, in which the wholly owned Subsidiary Guarantor shall be Company is the continuing or surviving corporation;
(b2) any Subsidiary Guarantor of may merge into any other Subsidiary in a transaction in which the Borrower consolidated ownership interest percentage in the surviving Subsidiary is no less than the consolidated ownership interest percentage in either predecessor entity;
(3) any Subsidiary may sell, leasetransfer, transfer lease or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower Company or any wholly owned Subsidiary Guarantor of the Borrowerto another Subsidiary;
(c4) the capital stock of any Subsidiary may liquidate or dissolve if the Board of Directors determines in good faith that such liquidation or dissolution is in the Borrower may be sold, transferred or otherwise disposed of Company’s best interests and is not materially disadvantageous to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerHolders;
(d5) the Obligors Company and any Subsidiary may sell, transfer or otherwise dispose of Investments any of the Company or its Subsidiaries’ assets (in the ordinary course of business or otherwise) in any transaction or series of transactions so long as (A) the aggregate market value of all assets so sold, transferred, leased or otherwise disposed of under this clause (5) during any fiscal year does not exceed 25% of the aggregate market value of all of the Company and its Subsidiaries’ assets, on a consolidated basis (excluding intercompany transactions), on the last day of the immediately preceding fiscal year and (B) the Company receives, or the relevant Subsidiary receives, consideration at the time of such sale, transfer, lease or other than disposition at least equal to a Financing Subsidiarythe fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the assets subject to such sale, transfer, lease or other disposition;
(6) the Company and any of its Subsidiaries may enter into any sale, transfer or disposition that is followed by the leasing back of the asset sold, transferred or disposed of; and
(7) so long as after giving effect to such saleno Change of Control would result therefrom, transfer or other disposition (the Company and any concurrent acquisitions of Investments its Subsidiaries may acquire the assets or payment interests of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sellany Person, transfer by way of merger or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearconsolidation.
Appears in 2 contracts
Sources: First Supplemental Indenture (Atlas Corp.), First Supplemental Indenture (Atlas Corp.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors other Obligor to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors other Obligor to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors other Obligor to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this Section). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a Financing Designated Subsidiary under clause (a) of the definition thereof so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect to the Administrative Agent and (ii) either (x) the amount by which of any excess availability under the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release sale, transfer or disposition is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release sale, transfer or disposition is at least 110% of the Covered Debt Amount;
(fe) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and;
(gf) the Borrower and each of the Subsidiary Guarantors other Obligors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year; and
(g) the Obligors may transfer Restricted Acquisition Assets to a Special Acquisition Subsidiary to the extent required by the terms of the Allied Secured Indebtedness.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Ares Capital Corp), Senior Secured Revolving Credit Agreement (Ares Capital Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve or divide itself (or suffer any liquidation liquidation, dissolution or dissolutiondivision). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock Capital Stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (xi) any transaction permitted under Section 6.05 or 6.12; and (ii) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash and Cash Equivalents in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments). Notwithstanding the foregoing provisions of this SectionSection 6.03:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerGuarantor;
(c) the capital stock Capital Stock of any Subsidiary of the Borrower may be sold, transferred (including a deemed transfer resulting from a division or plan of division) or otherwise disposed of (including by way of consolidation or merger)
(i) to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerBorrower or (ii) so long as such transaction results in an Obligor receiving the proceeds of such disposition, to any other Person; provided that in the case of this clause (ii), (x) if such Person is an Affiliate of the Borrower that is not an Obligor, such transaction shall be at prices and on terms and conditions, taken as a whole, not materially less favorable to such Obligor other than in good faith is believed to be obtained on an arm’s-length basis from unrelated third parties, and (y) if such Subsidiary is a Subsidiary Guarantor or holds any Portfolio Investments, the Borrower would not have been prohibited from disposing of all such Portfolio Investments and all other assets of such Subsidiary in one transaction to such other Person under any other term of this Agreement;
(d) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose Dispose of Investments (other than to a Financing SubsidiarySubsidiary or Excluded Asset) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansConcurrent Transaction) (x) the Covered Debt Amount does not exceed the Borrowing BaseBase or (y) if such sale, transfer or other disposition is made pursuant to, and in accordance with, a plan submitted and accepted in accordance with clause (e) of Article VII or, if the Administrative Agent otherwise consents in writing, the amount by which the Covered Debt Amount exceeds the Borrowing Base is reduced thereby;
(e) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose Dispose of Investments to a (A) an Immaterial Subsidiary or (B) Financing Subsidiary or Excluded Asset so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansConcurrent Transaction) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release sale, transfer or other disposition is not diminished as a result of such release sale, transfer or other disposition or (y) the Adjusted Gross Borrowing Base immediately after giving effect to such release sale, transfer or other disposition is at least 110% of the Covered Debt Amount; provided that, for the purposes of this clause (B)(ii) and in connection with the organization of any CLO Security, the Borrowing Base, Adjusted Gross Borrowing Base and the Covered Debt Amount, as applicable, shall be tested as of the pricing date for such CLO Security;
(f) the Borrower may merge or consolidate with with, or acquire all or substantially all of the assets of, any other Person (including any Subsidiary Guarantor) so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect theretothereto and any Concurrent Transaction, no Specified Default or Event of Default shall have occurred or be continuing; andprovided that, in no event shall the Borrower enter in any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States;
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 2,500,000 in any fiscal year;
(h) the Obligors may transfer assets to an Excluded Asset or a Financing Subsidiary for the sole purpose of facilitating the transfer of assets (x) from one Excluded Asset or Financing Subsidiary (or a Subsidiary that was an Excluded Asset or a Financing Subsidiary immediately prior to such disposition) to another Excluded Asset or Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”); provided that (i) no Event of Default exists and is continuing at such time, (ii) immediately after giving effect to such transfer and any Concurrent Transaction, the Covered Debt Amount shall not exceed the Borrowing Base at such time, (iii) the Transferred Assets were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day that such assets are transferred by such Obligor to the transferee Excluded Asset or Financing Subsidiary and (iv) following such transfer such Obligor has no liability, actual or contingent, with respect to the Transferred Assets other than Standard Securitization Undertakings and Permitted SBIC Guarantees not prohibited by Section 6.01 (for the avoidance of doubt, in determining for the purposes of this Agreement whether any Obligor has received Net Cash Proceeds in respect of any transaction involving a Transferred Asset, the transfer of such Transferred Asset to and from such Obligor shall be deemed to be a single transaction) and (y) in connection with a Back-to-Back Transaction;
(i) the Borrower may dissolve or liquidate any Subsidiary Guarantor so long as in connection with such dissolution or liquidation, any and all of the assets of such Subsidiary Guarantor shall be distributed or otherwise transferred to an Obligor; and
(j) the Borrower may deposit and use cash to purchase shares of common stock of the Borrower in connection with a Tender Offer to the extent such purchase would be, at the time approved by the board of directors of the Borrower, permitted pursuant to Section 6.05.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Bain Capital Private Credit), Revolving Credit Agreement (Bain Capital Private Credit)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than any SPE Subsidiaries or Immaterial Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than any Financing Subsidiaries or Immaterial Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than any Financing Subsidiaries or Immaterial Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash and dispositions of investments in connection with exits and work-outs in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this Section). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that (i) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing, (ii) if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between the Borrower and a Subsidiary Guarantor, the Borrower shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such salePortfolio Investments, transfer or other disposition (Cash and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments Cash Equivalents to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition release (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect to the Administrative Agent and (ii) either (x) the amount by which of any excess availability under the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(fe) the Borrower or any Subsidiary may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; andprovided that (i) if any such transaction shall be between the Borrower and another Person, the Borrower shall be the continuing or surviving corporation, (ii) if any such transaction shall be between a wholly-owned Subsidiary Guarantor and another Person (other than the Borrower), a wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between a Subsidiary Guarantor and another Person (other than the Borrower or a wholly-owned Subsidiary Guarantor), a Subsidiary Guarantor shall be the continuing or surviving corporation;
(gf) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year;
(g) any Subsidiary may voluntarily dissolve or liquidate if such Subsidiary that does not own, legally or beneficially, assets which in aggregate have a value of $500,000 or more at such time of dissolution or liquidation; and
(h) the Borrower or the other Obligors may dissolve or liquidate any SBIC Subsidiary; provided that no portion of any Indebtedness or any other obligations (contingent or otherwise) of such SBIC Subsidiary (a) is, or would as a result of dissolution or liquidation hereunder become, recourse to or obligate the Borrower or any other Obligor (other than any SBIC Subsidiary) in any way, or (b) subjects, or would as a result of the dissolution or liquidation hereunder subject, any property of the Borrower or any other Obligor (other than any SBIC Subsidiary) to the satisfaction of such Indebtedness.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (BlackRock Capital Investment Corp), Senior Secured Revolving Credit Agreement (BlackRock Capital Investment Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve or divide itself (or suffer any liquidation liquidation, dissolution or dissolutiondivision). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Portfolio Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash and Cash Equivalents in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred (including a deemed transfer resulting from a division or plan of division) or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) either (x) the Covered Debt Amount does not exceed the Borrowing BaseBase or (y) if such sale, transfer or other disposition is made pursuant to, and in accordance with, a plan submitted and accepted in accordance with clause (e) of Article VII or if the Administrative Agent otherwise consents in writing, the amount by which the Covered Debt Amount exceeds the Borrowing Base is reduced thereby;
(e) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of Portfolio Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with with, or acquire all or substantially all of the assets of, any other Person (including any Subsidiary Guarantor) so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; andprovided that, in no event shall the Borrower enter in any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States;
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year;
(h) the Obligors may transfer assets to a Financing Subsidiary for the sole purpose of facilitating the transfer of assets from one Financing Subsidiary (or a Subsidiary that was a Financing Subsidiary immediately prior to such disposition) to another Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”), provided that (i) no Default exists or is continuing at such time, (ii) the Covered Debt Amount shall not exceed the Borrowing Base at such time and (iii) the Transferred Assets were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day that such assets are transferred by such Obligor to the transferee Financing Subsidiary; and
(i) the Obligors may dissolve or liquidate (i) any Immaterial Subsidiary or (ii) any Subsidiary so long as (x) in connection with such dissolution or liquidation, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to an Obligor and (y) such dissolution or liquidation is not materially adverse to the Lenders and the Borrower determines in good faith that such dissolution or liquidation is in the best interests of the Borrower.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Owl Rock Capital Corp), Senior Secured Revolving Credit Agreement (Owl Rock Technology Finance Corp.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including, without limitation, Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (other than the Financing Subsidiaries) (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries (other than the Financing Subsidiaries)) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than ownership interests in Financing Subsidiaries), Cash and Cash Equivalents to a Financing Subsidiary so long as (i) prior to and immediately after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) (i) the Covered Debt Amount does not exceed the Borrowing Base and no Default exists, and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and effect, (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110115% of the Covered Debt Amount, (iii) the sum of (x) all sales, transfers or other dispositions under this clause (e) that occur after the Revolver Termination Date and do not result in Net Asset Sale Proceeds for fair value that are applied in accordance with Section 2.08(d)(i) and (y) all Investments under Section 6.04(e) that occur after the Revolver Termination Date, shall not exceed 20% of the Commitments on the Revolver Termination Date, and (iv) the Obligors’ Net Worth is in excess of $175,000,000 (and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect); provided that, notwithstanding the foregoing, the Obligors may, on or after the Amendment No. 1 Effective Date and prior to the earlier of (x) the Revolver Termination Date and (y) the date that is six (6) months after the date on which the aggregate amount of all net proceeds of all Unsecured Longer-Term Indebtedness and all sales of Equity Interests by the Borrower and/or its Subsidiaries after the Amendment No. 1 Effective Date (other than the proceeds of sales of Equity Interests by and among the Borrower and its Subsidiaries) is equal to or greater than $40,000,000, transfer Portfolio Investments (other than ownership interests in Financing Subsidiaries) and Cash to Monroe Capital Corporation SBIC, LP, so long as immediately prior to and immediately after giving effect to such transfer, (i) no Default exists, (ii) the Borrowing Base is at least 105% of the Covered Debt Amount, (iii) the sum of the value (determined as of the date of each such transfer pursuant to the valuation methodologies set forth in Section 5.12) of all such transfers of Portfolio Investments and Cash to Monroe Capital Corporation SBIC, LP following the Amendment No. 1 Effective Date pursuant to this proviso does not exceed $40,000,000 in the aggregate (provided further that the value (determined as of the date of each such transfer pursuant to the valuation methodologies set forth in Section 5.12) of all such transfers in the aggregate shall not exceed $20,000,000 plus the net cash proceeds received by the Borrower from any Unsecured Longer-Term Indebtedness or Equity Interest of the Borrower that is not Disqualified Equity Interest, in each case, issued by the Borrower following the Amendment No. 1 Effective Date and outstanding as of the date of such transfer), and (iv) the Obligors’ Net Worth is not less than $115,000,000 (and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer with respect to each of the clauses (i) through (iv) of this proviso);
(f) an Obligor may transfer assets to a Financing Subsidiary for the sole purpose of facilitating the transfer of assets from one Financing Subsidiary (or a Subsidiary that was a Financing Subsidiary immediately prior to such disposition) to another Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”); provided that (i) no Default exists or is continuing at such time, and the Covered Debt Amount shall not exceed the Borrowing Base at such time and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect, and (ii) the Transferred Assets were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day that such assets are transferred by such Obligor to the transferee Financing Subsidiary;
(g) the Borrower may merge or consolidate with any other Person Person, so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and;
(gh) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year; and
(i) any Subsidiary of the Borrower may be liquidated or dissolved; provided that (i) in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower and (ii) the Borrower determines in good faith that such liquidation is in the best interests of the Borrower and is not materially disadvantageous to the Lenders.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (MONROE CAPITAL Corp), Senior Secured Revolving Credit Agreement (MONROE CAPITAL Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Portfolio Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred (including a deemed transfer resulting from a division or plan of division) or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of Portfolio Investments (other than to a Financing SubsidiarySubsidiary that is not a Subsidiary Guarantor) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of Portfolio Investments to a Financing Subsidiary that is not a Subsidiary Guarantor so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with with, or acquire all or substantially all of the assets of, any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and;
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year; and
(h) the Borrower and each of the Subsidiary Guarantors may dissolve or liquidate (i) any Immaterial Subsidiary or (ii) any other Subsidiary so long as, with respect to this clause (ii), (A) in connection with such dissolution or liquidation, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to an Obligor and (B) such dissolution or liquidation is not materially adverse to the Lenders and the Borrower determines in good faith that such dissolution or liquidation is in its best interests.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Sixth Street Specialty Lending, Inc.), Senior Secured Revolving Credit Agreement (Sixth Street Specialty Lending, Inc.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter Enter into any transaction of merger or consolidation merger, consolidation, restructuring, recapitalization, reorganization or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any Dispose of the Subsidiary Guarantors to, acquire any all or substantially all of its Property or business or property fromamend, modify or capital stock ofotherwise change its name, jurisdiction of organization, organizational number, identification number or be a party to any acquisition of, any PersonFEIN, except for purchases or acquisitions of Investments that, if no Default shall have occurred and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Sectionbe continuing:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; (provided that if any such transaction Borrower shall be between a the continuing or surviving entity) or with or into any Wholly Owned Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned (provided that (i) such Subsidiary Guarantor shall be the continuing or surviving corporationentity or (ii) simultaneously with such transaction, the continuing or surviving entity shall become a Subsidiary Guarantor and Borrower shall comply with Section 5.12 in connection therewith);
(b) Borrower may consolidate with Holdings to effectuate an IPO; provided that (i) such consolidation has been authorized in accordance with terms set forth in the First Lien Credit Agreement, (ii) the survivor of such consolidation (“Successor Borrower”) shall expressly assume all obligations under this Agreement and the other Loan Documents, and each mortgagor, pledgor, grantor, guarantor or other obligor under the Loan Documents shall expressly ratify and confirm its obligations under the Loan Documents, in each case, pursuant to documentation in form and substance satisfactory to Agent, (iii) Agent shall have received such other agreements (including amendments or amendments and restatements of the Loan Documents), instruments, certificates, legal opinions and other documents as it may reasonably request to ensure the continued enforceability of the Loan Documents, the validity and continued perfection of all Liens under the Loan Documents, the assumption, confirmation and ratification of all obligations of the Successor Borrower and the other obligors under the Loan Documents, and otherwise in connection with the consolidation, the IPO and the transactions contemplated thereby and (iv) the Successor Borrower shall be in pro forma compliance with the covenants contained in Section 6.1;
(c) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Wholly Owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerGuarantor;
(d) the Obligors Capital Stock of any Subsidiary may sell, transfer be transferred to Borrower or otherwise dispose of Investments (any other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;Wholly-Owned Subsidiary Guarantor; and
(e) the Obligors Borrower or any Subsidiary may sellamend, transfer modify or otherwise dispose change its name, jurisdiction of Investments to a Financing Subsidiary so long as (i) after giving effect to such saleorganization, transfer organizational number, identification number or other disposition (FEIN in accordance with and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount extent permitted by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% Section 5.6 of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction Guarantee and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearSecurity Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Parsley Energy, Inc.), Credit Agreement (Parsley Energy, Inc.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve or divide itself (or suffer any liquidation liquidation, dissolution or dissolutiondivision). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Portfolio Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with with, or acquire all or substantially all of the assets of, any other Person (including any Subsidiary Guarantor) so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; provided that, in no event shall the Borrower enter in any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Owl Rock Capital Corp), Senior Secured Revolving Credit Agreement (Owl Rock Technology Finance Corp.)
Fundamental Changes. The Borrower Except for (a) the liquidation of Thunder Press into its parent company, Ehiert Publishing Group, Inc., and (b) the merger of ▇▇▇▇▇▇▇ Publications Corporation with and into TL Enterprises, Inc., each of which shall occur on or prior to the Effective Date, no Credit Party will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower No Credit Party will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, Person except for purchases or acquisitions of Investments inventory and other assets property to be sold or used in the normal ordinary course of the day-to-day business activities of the Borrower business, Investments permitted under Section 7.5 and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentCapital Expenditures permitted under Section 7.9(e). The Borrower No Credit Party will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any material part of its assetsbusiness or property, whether now owned or hereafter acquiredacquired (including, without limitation, receivables and leasehold interests, but excluding (x) assets obsolete or worn-out property, including leasehold interests, no longer used or useful in its business, (y) any inventory or other than Investments) property sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day and on ordinary business activities of the Borrower and its Subsidiaries) terms and (yz) subject Sale-Leaseback Transactions to the provisions of clauses (d) and (e) below, Investmentsextent permitted by Section 7.14. Notwithstanding the foregoing provisions of this SectionSection 7.4:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantoror into the Borrower; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary GuarantorWholly Owned Subsidiary, the wholly owned Wholly Owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor that is a Wholly Owned Subsidiary of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor that is a Wholly Owned Subsidiary of the Borrower;; and
(d) the Obligors any Credit Party may sellconsummate any Acquisition with any other Person (whether by way of purchase of assets or stock, transfer by merger or otherwise dispose of Investments (other than to a Financing Subsidiary) consolidation or otherwise), so long as after giving effect to such sale, transfer or other disposition as:
(i) the aggregate purchase price (including assumed liabilities and any concurrent acquisitions non-cash consideration valued at the fair market value thereof determined in good faith by the Board of Investments or payment Directors of outstanding Loansthe Borrower) paid by the Covered Debt Amount does not Credit Parties for Acquisitions in any fiscal year shall not, without the prior consent of the Required Senior Lenders, exceed the Borrowing Base$15,000,000;
(eii) such Acquisition (if by purchase of assets, merger or consolidation) shall be effected in such manner so that the acquired business, and the related assets, are owned by a Credit Party and, if effected by merger or consolidation involving a Credit Party, the Credit Party shall be the continuing or surviving entity;
(iii) such Acquisition (if by purchase of stock) shall be effected in such manner so that the acquired entity becomes a Wholly Owned Subsidiary of a Credit Party;
(iv) the Obligors may sell, transfer type of business of the business acquired in such Acquisition shall be one of the types of business engaged in by the Credit Parties as of the Effective Date and such business shall be located in the United States or otherwise dispose of Investments to a Financing Subsidiary so long as Canada;
(iv) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) Acquisition the Covered Debt Amount does not exceed the Borrowing Base Credit Parties shall be in compliance with Section 7.9 and the Borrower delivers shall have delivered to the Administrative Agent a certificate of a Financial Officer showing such calculations in reasonable detail to demonstrate such effect and compliance; and
(iivi) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof Acquisition and after giving effect thereto, no Default shall have occurred or and be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 2 contracts
Sources: Senior Secured Floating Rate Note Purchase Agreement (Affinity Group Inc), Senior Secured Floating Rate Note Purchase Agreement (Affinity Group Holding, Inc.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash and dispositions of investments in connection with exits and work-outs in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this Section). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that (i) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing, (ii) if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between the Borrower and a Subsidiary Guarantor, the Borrower shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition release (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect to the Administrative Agent and (ii) either (x) the amount by which of any excess availability under the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(fe) the Borrower or any Subsidiary may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuingcontinuing and provided that (i) if any such transaction shall be between the Borrower and another Person, the Borrower shall be the continuing or surviving corporation, (ii) if any such transaction shall be between a wholly-owned Subsidiary Guarantor and another Person (other than the Borrower), a wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between a Subsidiary Guarantor and another Person (other than the Borrower or a wholly-owned Subsidiary Guarantor), a Subsidiary Guarantor shall be the continuing or surviving corporation; and
(gf) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year.
Appears in 2 contracts
Sources: Amendment No. 1 (BlackRock Kelso Capital CORP), Senior Secured Credit Agreement (BlackRock Kelso Capital CORP)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries or Immaterial Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries or Immaterial Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (other than the Financing Subsidiaries) (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries (other than the Financing Subsidiaries)) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than ownership interests in Financing Subsidiaries), Cash and Cash Equivalents to a Financing Subsidiary so long as (i) prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and no Default exists, and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and effect, (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110120% of the Covered Debt Amount, (iii) the sum of (x) all sales, transfers or other dispositions under this clause (e) that occur after the Revolver Termination Date and do not result in Net Asset Sale Proceeds for fair value that are applied in accordance with Section 2.08(d)(i) and (y) all Investments under Section 6.04(e) that occur after the Revolver Termination Date, shall not exceed 20% of the Commitments on the Revolver Termination Date, and (iv) prior to and after giving effect to such sale, transfer or disposition (and any concurrent acquisitions of Portfolio Investments or payment of Loans or Other Covered Indebtedness), the Obligors’ Net Worth exceeds $125,000,000;
(f) an Obligor may transfer assets to a Financing Subsidiary for the sole purpose of facilitating the transfer of assets from one Financing Subsidiary (or a Subsidiary that was a Financing Subsidiary immediately prior to such disposition) to another Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”), provided that (i) no Default exists or is continuing at such time, and the Covered Debt Amount shall not exceed the Borrowing Base at such time and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect, and (ii) the Transferred Assets were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day that such assets are transferred by such Obligor to the transferee Financing Subsidiary;
(g) the Borrower may merge or consolidate with any other Person Person, so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and;
(gh) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year; and
(i) any Subsidiary of the Borrower may be liquidated or dissolved; provided that (i) in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower and (ii) the Borrower determines in good faith that such liquidation is in the best interests of the Borrower and is not materially disadvantageous to the Lenders.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Capitala Finance Corp.), Senior Secured Revolving Credit Agreement (Capitala Finance Corp.)
Fundamental Changes. (a) The Borrower will not, nor and will it not permit any of the Subsidiary Guarantors to, enter merge into or consolidate with any transaction of merger or consolidation or amalgamationother Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business other Person to merge into or property fromconsolidate with it, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, any part ) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), but excluding or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(ai) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or merge into the Borrower or in a transaction in which the Borrower is the surviving corporation, (ii) any other Subsidiary Guarantor; may merge into any Subsidiary in a transaction in which the surviving entity is a Subsidiary, provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary not a Subsidiary Guarantor, the wholly owned and such Subsidiary Guarantor shall be is not the continuing or surviving corporation;
, then the continuing or surviving corporation shall have assumed all of the obligations of such Subsidiary Guarantor hereunder and under the other Loan Documents pursuant to documentation satisfactory to the Administrative Agent in form and substance, (biii) any Subsidiary Guarantor of the Borrower may sell, leasetransfer, transfer lease or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Subsidiary, provided that if any wholly owned such transaction shall be between a Subsidiary Guarantor and a Subsidiary not a Subsidiary Guarantor, and if such Subsidiary Guarantor is not the continuing or surviving corporation, then the continuing or surviving corporation shall have assumed all of the Borrower;
(c) the capital stock obligations of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned such Subsidiary Guarantor of hereunder and under the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than Loan Documents pursuant to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers documentation satisfactory to the Administrative Agent in form and substance, (iv) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; provided that any such merger that would otherwise be permitted by this Section 6.03 involving a certificate of Person that is not a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount wholly owned Subsidiary immediately prior to such release is merger shall not diminished as a result of such release or be permitted unless also permitted by Section 6.04 and (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(fv) the Borrower may merge or consolidate with any other Person so long into a newly formed, "shell" corporation organized under the laws of the Commonwealth of Virginia in a transaction intended merely to "reincorporate" the Borrower as a Virginia corporation, provided that (i) the Borrower is the continuing or surviving entity corporation shall have assumed all of the obligations of the Borrower hereunder and under the other Loan Documents pursuant to documentation satisfactory to the Administrative Agent in such transaction form and substance, (ii) at the time thereof and after giving effect thereto, no Default shall have occurred and be continuing or be continuing; andwould result therefrom and (iii) the Lenders shall have received a legal opinion from counsel to the Borrower acceptable to the Administrative Agent and in form, scope and substance acceptable to the Administrative Agent as to such merger and such assumption.
(gb) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and each its Subsidiaries on the date of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose execution of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer this Agreement and dispositions does not exceed $5,000,000 in any fiscal yearbusinesses reasonably related thereto.
Appears in 2 contracts
Sources: Five Year Credit Agreement (Smithfield Foods Inc), 364 Day Credit Agreement (Smithfield Foods Inc)
Fundamental Changes. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, Person except for purchases or acquisitions of Investments inventory and other assets property to be sold or used in the normal ordinary course of the day-to-day business activities of the Borrower business, Investments permitted under Section 7.05 and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentCapital Expenditures. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsbusiness or property, whether now owned or hereafter acquiredacquired (including, without limitation, receivables and leasehold interests, but excluding (x) assets obsolete or worn out property, tools or equipment, or other assets, in each case, no longer used or useful in its business and (y) any inventory or other than Investments) property sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day and on ordinary business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investmentsterms). Notwithstanding the foregoing provisions of this SectionSection 7.04:
(a) any Restricted Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower Company or any other Subsidiary GuarantorRestricted Subsidiary; provided that (i) if any such transaction shall be between a Restricted Subsidiary Guarantor and a wholly owned Wholly Owned Restricted Subsidiary Guarantorof the Company, a Wholly Owned Restricted Subsidiary shall be the continuing or surviving corporation and (ii) if any such transaction shall be between the Company and a Restricted Subsidiary, the wholly owned Subsidiary Guarantor Company shall be the continuing or surviving corporation;
(b) any Restricted Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to the Borrower Company or any wholly owned Wholly Owned Restricted Subsidiary Guarantor of the BorrowerCompany;
(c) the capital stock of any Restricted Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower Company or any wholly owned Wholly Owned Restricted Subsidiary Guarantor of the BorrowerCompany;
(d) the Obligors Company or any of its Restricted Subsidiaries may sellsell assets (including, transfer or otherwise dispose without limitation, capital stock issued by any of Investments their respective Subsidiaries) for fair market value provided that (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loansi) the Covered Debt Amount does aggregate amount of Disposition Investments and other non-cash proceeds (valued at the fair market value thereof determined in good faith by the Board of Directors of the Company) received by the seller in the sale of any asset shall not exceed 25% of the Borrowing Basetotal sales price for such asset (including (A) the amount of liabilities, if any, assumed as a portion of the sales price and (B) the amount of any repayment by the seller of the principal of Indebtedness to the extent that (X) such Indebtedness is secured by a Lien on such asset and (Y) the seller is required by the transferee of (or holder of a Lien on) such assets to repay such principal as a condition to the purchase of such asset) and (ii) no more than 10% of EBITDA for any fiscal year of the Company shall be attributable to all such assets so sold in the following fiscal year of the Company;
(e) the Obligors Company or any Restricted Subsidiary of the Company may sellacquire any business, transfer and the related assets, of any other Person including of an Unrestricted Subsidiary (whether by way of purchase of assets or otherwise dispose of Investments to a Financing Subsidiary stock, by merger or consolidation or otherwise), so long as as:
(i) such Acquisition (if by purchase of assets, merger or consolidation) shall be effected in such manner so that the acquired business, and the related assets, are owned either by the Company or a Restricted Subsidiary of the Company and, if effected by merger or consolidation involving the Company, the Company shall be the continuing or surviving entity and, if effected by merger or consolidation involving a Wholly Owned Restricted Subsidiary of the Company, such Wholly Owned Restricted Subsidiary shall be the continuing or surviving entity;
(ii) such Acquisition (if by purchase of stock) shall be effected in such manner so that the acquired entity becomes a Restricted Subsidiary of the Company;
(iii) after giving effect to such saleAcquisition the Company shall be in compliance with Section 7.09 (the determination of such compliance to be calculated on a pro forma basis, transfer or other disposition (as at the end of and for the period of four fiscal quarters most recently ended prior to the date of such Acquisition for which financial statements of the Company and its Restricted Subsidiaries are available, under the assumption that such Acquisition shall have occurred, and any concurrent acquisitions Indebtedness in connection therewith shall have been incurred, at the beginning of Investments or payment the applicable period, and under the assumption that interest for such period had been equal to the actual weighted average interest rate in effect for the Loans hereunder on the date of outstanding Loanssuch Acquisition) and, in the Covered Debt Amount does not event that the aggregate amount of expenditures in respect of such Acquisition shall exceed $100,000,000, the Borrowing Base and the Borrower delivers Company shall have delivered to the Administrative Agent a certificate of a Financial Officer showing calculations in reasonable detail to such effect and demonstrate compliance with this subclause (iiiii); and
(iv) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof Acquisition and after giving effect thereto, no Default shall have occurred or and be continuing;
(f) the Company and its Restricted Subsidiaries may dispose of any one or more outdoor properties in exchange for one or more other outdoor properties (including logo signage businesses), so long as the percentage of the aggregate EBITDA attributable to the properties so disposed of during any single fiscal year does not exceed 10% of the aggregate EBITDA of the Company and its Restricted Subsidiaries for the most recently-ended fiscal year (such EBITDA to be determined for these purposes without giving effect to the last paragraph of the definition of such term in Section 1.01); and
(g) the Borrower and each of the Subsidiary Guarantors may sellany sale, leaseassignment, transfer or otherwise dispose other disposition of equipment property by the Company or other property or assets any Restricted Subsidiary that do not consist of Investments so long would be permitted as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearan Investment pursuant to Section 7.05(a) shall be permitted under this Section 7.04.
Appears in 2 contracts
Sources: Credit Agreement (Lamar Media Corp/De), Credit Agreement (Lamar Media Corp/De)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this Section). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition release (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect to the Administrative Agent and (ii) either (x) the amount by which of any excess availability under the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(fe) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(gf) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Apollo Investment Corp), Amended and Restated Senior Secured Revolving Credit Agreement (Apollo Investment Corp)
Fundamental Changes. The Borrower will notMerge into or consolidate with any other Person, nor will it or permit any of the Subsidiary Guarantors to, enter other Person to merge into any transaction of merger or consolidation or amalgamationconsolidate with it, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, any part ) all or substantially all of its assetsassets (in each case, whether now owned or hereafter acquired), but excluding or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(ai) any Subsidiary Guarantor of the any Borrower may be merged or consolidated with or merge into such Borrower in a transaction in which such Borrower is the Borrower surviving entity, (ii) any Subsidiary of Holdings may merge into Holdings or any other Subsidiary Guarantor; of Holdings (provided that (A) if Kmart Corp. is a party to such merger, such merger shall be with Holdings, Kmart or a direct Subsidiary of Kmart Corp. and Kmart Corp. shall be the continuing or surviving entity, (B) if any such transaction shall be between a Subsidiary Guarantor and is a wholly owned Subsidiary Guarantorparty to such merger (other than with a Borrower or Holdings), the wholly owned such Subsidiary Guarantor shall be the continuing or surviving corporation;
entity or the continuing or surviving entity shall become a Subsidiary Guarantor and (bC) if SRAC is a party to such merger, then Sears shall comply with the requirements of Section 6.01(d)), (iii) any Subsidiary Guarantor of Holdings other than the Borrower Borrowers may sell, leasetransfer, transfer lease or otherwise dispose of any or all of its assets to any Borrower, to Holdings or to a Subsidiary of Holdings (upon voluntary liquidation provided that if such sale or otherwise) to transfer includes Collateral and the transferee is not the Borrower or any wholly owned Holdings, the transferee shall be a Subsidiary Guarantor of the Borrower;
Guarantor), (civ) the capital stock of any Subsidiary of Holdings other than the Borrower may be sold, transferred Borrowers or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors Sears may sell, transfer transfer, lease or otherwise dispose of Investments its assets to a Person that is not a Subsidiary or merge with a Person that is not a Subsidiary, in each case pursuant to a Permitted Disposition, (v) any Subsidiary of Holdings other than to a Financing Subsidiarythe Borrowers, Sears or any Material Subsidiary Guarantor (except, in the case of SRAC, as provided in Section 6.01(d)) so long as after giving effect to such sale, transfer may liquidate or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base dissolve if Holdings and the Borrower delivers Borrowers determine in good faith that such liquidation or dissolution is in the best interests of Holdings, the Borrowers, Sears, the other Material Subsidiary Guarantors and their Subsidiaries and is not disadvantageous in any material respect to Holdings, the Administrative Agent Borrowers, Sears, the other Material Subsidiary Guarantors or the Lenders; provided, that a certificate Material Subsidiary Guarantor may liquidate or dissolve into a Person that is a Subsidiary of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount Holdings immediately prior to such release liquidation or dissolution, if the continuing or surviving entity is or shall become a Subsidiary Guarantor in accordance with Section 6.01(i)(ii), (vi) Holdings or any Subsidiary of Holdings may merge with a Person that is not diminished as a result Subsidiary of such release or (y) the Borrowing Base Holdings immediately after giving effect prior to such release is at least 110% merger if, in the case of the Covered Debt Amount;
(f) the any merger involving Holdings, a Borrower may merge or consolidate with any other Person so long a Subsidiary Guarantor, Holdings, such Borrower or such Subsidiary Guarantor, as (i) the Borrower applicable, is the continuing or surviving entity or, in such transaction the case of any merger involving a Subsidiary Guarantor, the continuing or surviving entity shall become a Subsidiary Guarantor in accordance with Section 6.01(i)(ii) and (iivii) at any Credit Card Royalty Securitization Subsidiary may sell or otherwise finance or Dispose of the time thereof and after giving effect thereto, no Default shall have occurred or be continuingassets subject to the Credit Card Royalty Securitization; and
provided that contemporaneously with (gx) the Borrower and each occurrence of any of the Subsidiary Guarantors may sellactions permitted to be taken pursuant to the foregoing clauses (i) through (vi) of this clause (b) or (y) the consummation of a Credit Card Royalty Securitization, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearBorrowers shall furnish to the Collateral Agent an updated Borrowing Base Certificate.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Sears Holdings Corp), Second Lien Credit Agreement (Sears Holdings Corp)
Fundamental Changes. The Borrower will not, nor and will it not permit any of the Subsidiary Guarantors to, enter (i) whether pursuant to a Delaware LLC Division, Delaware LP Division or otherwise, merge into or consolidate with any transaction of merger or consolidation or amalgamationother Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors toother Person to merge into or consolidate with it, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, (ii) sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, ) all or substantially all/any substantial part of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), but excluding (xiii) assets whether pursuant to a Delaware LLC Division, Delaware LP Division or otherwise, liquidate or dissolve, (other than Investmentsiv) sold divide into two or disposed of in more Persons, including becoming a Delaware Divided LLC or Delaware Divided LP (whether or not the ordinary course of business original Person survives such division) or (including v) create, or reorganize into, one or more series pursuant to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) belowa Delaware LLC Division or Delaware LP Division, Investments. Notwithstanding the foregoing provisions of this Sectionor except that, so long as no Default exists or would result therefrom:
(a) any Subsidiary Guarantor of the Borrower Person may be merged merge or consolidated consolidate with or into (i) the Borrower or any other Subsidiary Guarantor; the Trust, provided that if any such transaction the Borrower or the Trust, as applicable, shall be between a the continuing or surviving Person and there is no Change in Control, or (ii) any one or more other Subsidiaries, including newly formed Subsidiaries, provided that when any Subsidiary Guarantor and is merging or consolidating with or into another Subsidiary that is not a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationPerson;
(b) any Subsidiary Guarantor may merge, dissolve or liquidate, or sell, transfer, lease or otherwise dispose of the any, all or substantially all of its assets, and Borrower may sell, lease, transfer or otherwise dispose of any or all of its direct and indirect Equity Interests in any Subsidiary, provided that if such Subsidiary owns a Property that had been included as an Unencumbered Property, Borrower shall have complied with the requirements of Section 2.23(b) for removal of such Unencumbered Property;
(c) Borrower or Trust may enter into a merger in which such entity is the survivor, and there is no Change in Control and Borrower has complied with Section 6.09, to the extent applicable;
(d) Any Loan Party may sell, transfer, lease or otherwise dispose of any, all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower any other Loan Party (or to any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to Person that becomes concurrently with such sale, transfer transfer, lease or other disposition a Loan Party pursuant to Section 5.11); provided, any Loan Party that is a Wholly-Owned Subsidiary shall only be permitted to sell, transfer, lease or dispose of its assets to another Wholly-Owned Subsidiary pursuant to this clause (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;d); and
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Any Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release that is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower Loan Party may merge into or consolidate with any other Person, or permit any other Person so long as to merge into or consolidate with it, or liquidate or dissolve, pursuant to a Delaware LLC Division or Delaware LP Division and may consummate any transaction described in clauses (iiv) the Borrower is the continuing or surviving entity in such transaction and (iiv) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearabove.
Appears in 2 contracts
Sources: Second Amendment to Credit Agreement (ARES INDUSTRIAL REAL ESTATE INCOME TRUST Inc.), Credit Agreement (BLACK CREEK INDUSTRIAL REIT IV Inc.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the 91 Revolving Credit Agreement terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Portfolio Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower Obligor may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of or the Subsidiary Guarantors other Obligors may dissolve or liquidate any Immaterial Subsidiary;
(h) the Obligors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement, Senior Secured Revolving Credit Agreement (Carlyle GMS Finance, Inc.)
Fundamental Changes. The Borrower will notMerge into or consolidate with any other Person, nor will it or permit any of the Subsidiary Guarantors to, enter other Person to merge into any transaction of merger or consolidation or amalgamationconsolidate with it, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, any part ) all or substantially all of its assetsassets (in each case, whether now owned or hereafter acquired), but excluding or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(ai) any Subsidiary Guarantor of the any Borrower may be merged or consolidated with or merge into such Borrower in a transaction in which such Borrower is the Borrower surviving entity, (ii) any Subsidiary of Holdings may merge into Holdings or any other Subsidiary Guarantor; of Holdings (provided that (A) if Kmart Corp. is a party to such merger, such merger shall be with Holdings, Kmart or a direct Subsidiary of Kmart Corp. and Kmart Corp. shall be the continuing or surviving entity, (B) if any such transaction shall be between a Subsidiary Guarantor and is a wholly owned Subsidiary Guarantorparty to such merger (other than with a Borrower or Holdings), the wholly owned such Subsidiary Guarantor shall be the continuing or surviving corporation;
entity or the continuing or surviving entity shall become a Subsidiary Guarantor and (bC) if SRAC is a party to such merger, then Sears shall comply with the requirements of Section 6.01(d)), (iii) any Subsidiary Guarantor of Holdings other than the Borrower Borrowers may sell, leasetransfer, transfer lease or otherwise dispose of any or all of its assets to any Borrower, to Holdings or to a Subsidiary of Holdings (upon voluntary liquidation provided that if such sale or otherwise) to transfer includes Inventory, Credit Card Accounts Receivable or Related Intellectual Property and the transferee is not the Borrower or any wholly owned Holdings, the transferee shall be a Subsidiary Guarantor of the Borrower;
Guarantor), (civ) the capital stock of any Subsidiary of Holdings other than the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors Borrowers may sell, transfer transfer, lease or otherwise dispose of Investments its assets to a Person that is not a Subsidiary through transactions which are undertaken in the ordinary course of its business or determined by Holdings or the Borrowers in good faith to be in the best interests of Holdings, the Borrowers and their Subsidiaries, (v) any Subsidiary of Holdings other than to a Financing Subsidiarythe Borrowers (except, in the case of SRAC, as provided in Section 6.01(d)) so long as after giving effect to such sale, transfer may liquidate or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base dissolve if Holdings and the Borrower delivers Borrowers determine in good faith that such liquidation or dissolution is in the best interests of Holdings, the Borrowers and their Subsidiaries and is not materially disadvantageous to the Administrative Agent a certificate of a Financial Officer to such effect Lenders and (iivi) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount Holdings or any Subsidiary of Holdings may merge with a Person that is not a Subsidiary of Holdings immediately prior to such release is not diminished merger if, in the case of any merger involving Holdings, a Borrower or a Subsidiary Guarantor, Holdings, such Borrower or such Subsidiary Guarantor, as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower applicable, is the continuing or surviving entity or, in such transaction and (ii) at the time thereof and after giving effect theretocase of any merger involving a Subsidiary Guarantor, no Default the continuing or surviving entity shall have occurred or be continuing; and
(g) the Borrower and each of the become a Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 Guarantor in any fiscal yearaccordance with Section 6.01(i)(ii).
Appears in 2 contracts
Sources: Credit Agreement (Sears Roebuck Acceptance Corp), Credit Agreement (Kmart Holding Corp)
Fundamental Changes. The Borrower Except for (a) the liquidation of Thunder Press into its parent company, ▇▇▇▇▇▇ Publishing Group, Inc., and (b) the merger of ▇▇▇▇▇▇▇ Publications Corporation with and into IL Enterprises, Inc., each of which shall occur on or prior to the Effective Date, no Credit Party will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower No Credit Party will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, Person except for purchases or acquisitions of Investments inventory and other assets property to be sold or used in the normal ordinary course of the day-to-day business activities of the Borrower business, Investments permitted under Section 7.5 and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentCapital Expenditures permitted under Section 7.9(e). The Borrower No Credit Party will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any material part of its assetsbusiness or property, whether now owned or hereafter acquiredacquired (including, without limitation, receivables and leasehold interests, but excluding (x) assets obsolete or worn-out property, including leasehold interests, no longer used or useful in its business, (y) any inventory or other than Investments) property sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day and on ordinary business activities of the Borrower and its Subsidiaries) terms and (yz) subject Sale-Leaseback Transactions to the provisions of clauses (d) and (e) below, Investmentsextent permitted by Section 7.14. Notwithstanding the foregoing provisions of this SectionSection 7.4:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantoror into the Borrower; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary GuarantorWholly Owned Subsidiary, the wholly owned Wholly Owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor that is a Wholly Owned Subsidiary of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor that is a Wholly Owned Subsidiary of the Borrower;; and
(d) the Obligors any Credit Party may sellconsummate any Acquisition with any other Person (whether by way of purchase of assets or stock, transfer by merger or otherwise dispose of Investments (other than to a Financing Subsidiary) consolidation or otherwise), so long as after giving effect to such sale, transfer or other disposition as:
(i) the aggregate purchase price (including assumed liabilities and any concurrent acquisitions non-cash consideration valued at the fair market value thereof determined in good faith by the Board of Investments or payment Directors of outstanding Loansthe Borrower) paid by the Covered Debt Amount does not Credit Parties for Acquisitions in any fiscal year shall not, without the prior consent of the Required Senior Lenders, exceed the Borrowing Base$15,000,000;
(eii) such Acquisition (if by purchase of assets, merger or consolidation) shall be effected in such manner so that the acquired business, and the related assets, are owned by a Credit Party and, if effected by merger or consolidation involving a Credit Party, the Credit Party shall be the continuing or surviving entity;
(iii) such Acquisition (if by purchase of stock) shall be effected in such manner so that the acquired entity becomes a Wholly Owned Subsidiary of a Credit Party;
(iv) the Obligors may sell, transfer type of business of the business acquired in such Acquisition shall be one of the types of business engaged in by the Credit Parties as of the Effective Date and such business shall be located in the United States or otherwise dispose of Investments to a Financing Subsidiary so long as Canada;
(iv) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) Acquisition the Covered Debt Amount does not exceed the Borrowing Base Credit Parties shall be in compliance with Section 7.9 and the Borrower delivers shall have delivered to the Administrative Agent a certificate of a Financial Officer showing such calculations in reasonable detail to demonstrate such effect and compliance; and
(iivi) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof Acquisition and after giving effect thereto, no Default shall have occurred or and be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 2 contracts
Sources: Credit Agreement (Affinity Group Inc), Credit Agreement (Affinity Group Holding, Inc.)
Fundamental Changes. The Borrower Each Obligor will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower Each Obligor will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, acquire (1) at any business or property from, or capital stock of, or be a party time prior to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors toQualified IPO, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsbusiness or property, whether now owned or hereafter acquiredacquired (including receivables and leasehold interests, but excluding (x) assets obsolete or worn-out property, tools or equipment no longer used or useful in its business, (other than Investmentsy) any property (including Equity Interests of Subsidiaries) sold or disposed of in the ordinary course of business and on ordinary business terms and (z) the issuance of Equity Interests of the Obligors permitted under Section 7.06), and (2) at any time on and after the Qualified IPO Date, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of the consolidated assets (including to make expenditures by way of cash in the normal course sale or transfer of stock of Subsidiaries) of the day-to-day business activities of the Borrower Obligors and its their Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Obligor or any Subsidiary Guarantor of the Borrower an Obligor may be merged or consolidated with or into the Borrower any other Obligor or any other Subsidiary Guarantorof an Obligor; provided that (i) if any such transaction shall be between a Subsidiary (other than an Obligor or a Subsidiary Guarantor) and a wholly owned Subsidiary (other than an Obligor or a Subsidiary Guarantor), the wholly owned Subsidiary shall be the continuing or surviving entity, (ii) if any such transaction shall involve an Obligor, an Obligor shall be the continuing or surviving entity, and (iii) if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Non-Subsidiary Guarantor, the wholly owned such Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower an Obligor may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to (i) an Obligor or (ii) in the Borrower or case of any such Subsidiary that is not itself an Obligor, any wholly owned Subsidiary Guarantor of the Borroweran Obligor;
(c) the capital stock Equity Interests of any Subsidiary of the Borrower an Obligor may be sold, transferred or otherwise disposed of to (i) an Obligor or (ii) in the Borrower or case of any such Subsidiary that is not itself an Obligor, any wholly owned Subsidiary Guarantor of the Borrowersuch Obligor;
(di) the Subsidiaries (other than an Obligor) of the Obligors may sellundergo a restructuring, transfer (ii) any Obligor or otherwise dispose any Subsidiary of Investments an Obligor may be reorganized as a corporation in its jurisdiction of organization or in any Permitted Jurisdiction, and (other than iii) prior to a Financing Subsidiary) so long as after giving effect to such salethe Specified IPO Date, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors and their Subsidiaries may sellconsummate the Company Reorganization (each of the transactions described in clauses (i) through (iii) of this paragraph (d), transfer or otherwise dispose which in the case of Investments the foregoing clause (iii) shall be deemed to mean the series of transactions that, taken as a Financing Subsidiary whole, constitute the Company Reorganization, a “Restructuring Transaction”), in each case so long as (iu) after giving effect such Restructuring Transaction could not reasonably be expected to such sale, transfer or other disposition (materially reduce the expected distributions to be received by the Obligors in respect of Management Fees and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.Carried Interest,
Appears in 2 contracts
Sources: Credit Agreement (Carlyle Group L.P.), Credit Agreement (Carlyle Group L.P.)
Fundamental Changes. The Borrower will notMerge, nor will it permit any consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of the assets of (i) SXL Operations or any Subsidiary Guarantors to, enter into any transaction (other than the Borrower and its Subsidiaries) determined based upon the assets of merger or consolidation or amalgamationSXL Operations and its Subsidiaries on a consolidated basis, or liquidate, wind up (ii) the Borrower or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any Subsidiary of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other Borrower determined based upon the assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or on a series of transactions, any part of its assetsconsolidated basis, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold to or disposed in favor of in the ordinary course any Person, except that, so long as no Default or Event of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this SectionDefault exists or would result therefrom:
(a) mergers and consolidations among SXL Operations and its Subsidiaries are permitted, provided that in any Subsidiary Guarantor of merger or consolidation involving (i) the Borrower, the Borrower may be merged is the surviving entity, or consolidated with or into (ii) SXL Operations, SXL Operations is the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) mergers and consolidations with another Person, provided that in any merger or consolidation involving (i) the Borrower, the Borrower is the surviving entity, (ii) SXL Operations, SXL Operations is the surviving entity, or (iii) any Subsidiary, (A) such Subsidiary is the surviving entity, or (B) such Person, upon completion of the merger or consolidation, will be a Subsidiary; and
(c) any Subsidiary Guarantor of (other than the Borrower Borrower) may sell, lease, transfer sell or otherwise dispose of any transfer all or substantially all of its assets (upon voluntary liquidation liquidation, dissolution or otherwise) ), to the Borrower Borrower, SXL Operations or any wholly owned Subsidiary Guarantor of to another Subsidiary; provided that if the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity transferor in such a transaction and (ii) at is a Wholly-Owned Subsidiary, then the time thereof and after giving effect thereto, no Default shall have occurred or transferee must also be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yeara Wholly-Owned Subsidiary.
Appears in 2 contracts
Sources: 364 Day Revolving Credit Agreement (Sunoco Logistics Partners L.P.), 364 Day Revolving Credit Agreement (Sunoco Logistics Partners L.P.)
Fundamental Changes. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve or divide itself (or suffer any liquidation liquidation, dissolution or dissolutiondivision). The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock Capital Stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower Company and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentAgreement. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (w) any transaction permitted under Section 10.6, (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash Cash and Cash Equivalents in the normal course of the day-to-day business activities of the Borrower Company and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower Company or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower Company or any wholly owned Subsidiary Guarantor of the BorrowerCompany;
(c) the capital stock Capital Stock of any Subsidiary of the Borrower Company may be sold, transferred or otherwise disposed of (including by way of consolidation or merger) (i) to the Borrower Company or any wholly owned Subsidiary Guarantor of the BorrowerCompany or (ii) so long as such transaction results in an Obligor receiving the proceeds of such disposition, to any other Person, provided, that in the case of this clause (ii), if such Subsidiary is a Subsidiary Guarantor or holds any Portfolio Investments, the Company would not have been prohibited from disposing of any such Portfolio Investments to such other Person under any other term of this Agreement;
(d) the Obligors may sell, transfer or otherwise dispose Dispose of Investments (other than to a Financing Subsidiary) so long as after giving permitted by Section 6.03(d) of the Bank Credit Agreement as in effect to such sale, transfer on the Execution Date or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Baseunder a similar provision in a Replacement Facility;
(e) the Obligors may sell, transfer or otherwise dispose Dispose of Investments to a Financing Subsidiary so long as (ipermitted by Section 6.03(e) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt AmountBank Credit AG Twin Brook Capital Income Fund Master Note Purchase Agreement Agreement as in effect on the Execution Date or under a similar provision in a Replacement Facility;
(f) the Borrower Company may merge or consolidate with (or acquire all or substantially all of the assets of) any other Person so long as (i) the Borrower Company is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default or Event of Default shall have occurred or be continuing; and;
(g) the Borrower Company and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal yearyear or the amount set forth in a similar provision in a Replacement Facility; provided that, in no event shall the Company enter in any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States.
Appears in 2 contracts
Sources: Master Note Purchase Agreement (TPG Twin Brook Capital Income Fund), Master Note Purchase Agreement (AG Twin Brook Capital Income Fund)
Fundamental Changes. The Borrower will notIf, nor will it permit at any of time while this Warrant is outstanding, (i) the Subsidiary Guarantors to, enter into Company effects any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business Company with or property from, or capital stock of, or be a party to any acquisition of, any into another Person, except for purchases (ii) the Company effects any sale of all or acquisitions substantially all of Investments and other its assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of related transactions, (iii) any part tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of its assetsCommon Shares are permitted to tender or exchange their shares for other securities, whether now owned cash or hereafter acquiredproperty, but excluding or (xiv) assets the Company effects any reclassification of the Common Shares or any compulsory share exchange pursuant to which the Common Shares are effectively converted into or exchanged for other securities, cash or property (other than Investmentsas a result of a subdivision or combination of shares of Common Shares covered by SECTION 9(A) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiariesabove) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if Change of Control (in any such transaction case, a "FUNDAMENTAL CHANGE"), then the Holder shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantorhave the right thereafter only to receive, upon exercise of this Warrant, the wholly owned Subsidiary Guarantor shall be same amount and kind of securities, cash or property as it would have been entitled to receive upon the continuing or surviving corporation;
(b) any Subsidiary Guarantor occurrence of the Borrower may sellsuch Fundamental Change if it had been, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) Fundamental Change, the Borrowing Base immediately after giving effect to such release is at least 110% holder of the Covered Debt Amount;
number of Warrant Shares then issuable upon exercise in full of this Warrant (f) the Borrower may merge "ALTERNATE CONSIDERATION"). The aggregate Exercise Price for this Warrant will not be affected by any such Fundamental Change, but the Company shall apportion such aggregate Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Shares are given any choice as to the securities, cash or consolidate with property to be received in a Fundamental Change, then the Holder shall be given the same choice as to the Alternate Consideration it is entitled to receive upon any other Person so long as (i) exercise of this Warrant following such Fundamental Change. At the Borrower is Holder's request, any successor to the continuing Company or surviving entity in such Fundamental Change shall issue to the Holder a new warrant consistent with the foregoing provisions and evidencing the Holder's right to purchase only the Alternate Consideration for the aggregate Exercise Price upon exercise thereof. The terms of any agreement pursuant to which a Fundamental Change is effected shall include terms requiring any such successor or surviving entity to comply with the provisions of this SECTION 9(C) and ensuring that this Warrant (or any such replacement security) will be similarly adjusted upon any subsequent transaction and (ii) analogous to a Fundamental Change. If any Fundamental Change constitutes or results in a Change of Control, then at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each request of the Subsidiary Guarantors may sellHolder delivered before the 90th day after such Fundamental Change, leasethe Company (or any such successor or surviving entity) will purchase this Warrant from the Holder for a purchase price, transfer or otherwise dispose payable in cash within five Trading Days after such request (or, if later, on the effective date of equipment or other property or assets that do not consist the Fundamental Change), equal to the value of Investments so long as the aggregate amount remaining unexercised portion of all this Warrant on the date of such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearrequest calculated using the binomial option pricing model.
Appears in 2 contracts
Sources: Securities Agreement (North American Palladium LTD), Securities Agreement (North American Palladium LTD)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash and dispositions of investments in connection with exits and work-outs in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this Section). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that (i) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing, (ii) if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between the Borrower and a Subsidiary Guarantor, the Borrower shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition release (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect to the Administrative Agent and (ii) either (x) the amount by which of any excess availability under the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(fe) the Borrower or any Subsidiary may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; andcontinuing and provided that (i) if any such transaction shall be between the Borrower and another Person, the Borrower shall be the continuing or surviving corporation, (ii) if any such transaction shall be between a wholly-owned Subsidiary Guarantor and another Person (other than the Borrower), a wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between a Subsidiary Guarantor and another Person (other than the Borrower or a wholly-owned Subsidiary Guarantor), a Subsidiary Guarantor shall be the continuing or surviving corporation;
(gf) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year; and
(g) any Subsidiary may voluntarily dissolve or liquidate if such Subsidiary that does not own, legally or beneficially, assets which in aggregate have a value of $500,000 or more at such time of dissolution or liquidation.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (BlackRock Kelso Capital CORP), Senior Secured Revolving Credit Agreement (BlackRock Kelso Capital CORP)
Fundamental Changes. The Borrower Holding Company will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, enter merge or consolidate with or into any transaction of merger or consolidation or amalgamationother Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business other Person to merge into or property fromwith it or consolidate with it, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, ) any part of the stock of its assetsSubsidiaries (in each case, whether now owned or hereafter acquired), but excluding (x) assets (other than Investments) sold or disposed liquidate or dissolve itself or any of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) , except that, if at the time of any such event and (y) subject to the provisions immediately after giving effect thereto no Default or Event of clauses (d) Default shall have occurred and (e) below, Investments. Notwithstanding the foregoing provisions of this Sectionbe continuing:
(a) any Wholly-Owned Subsidiary Guarantor of the Borrower may be merged merge or consolidated consolidate with or into the Borrower Holding Company or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationinto another Wholly-Owned Subsidiary;
(b) any Wholly-Owned Subsidiary Guarantor of the Borrower may sell, leasetransfer, transfer lease or otherwise dispose of any or all portion of its assets (upon voluntary liquidation or otherwise) to the Borrower Holding Company or any wholly owned Subsidiary Guarantor of the Borrowerto another Wholly-Owned Subsidiary;
(c) any Wholly-Owned Subsidiary may liquidate or dissolve if the capital stock of any Subsidiary Holding Company determines in good faith that such liquidation or dissolution is in the best interests of the Borrower may be sold, transferred or otherwise disposed of Holding Company and is not materially disadvantageous to the Borrower or any wholly owned Subsidiary Guarantor holders of the BorrowerNotes;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing BaseAcceptable Acquisitions shall be permitted;
(e) the Obligors may selldisposal of Northern States Tire, transfer Inc. shall be permitted, whether by sale of assets or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such salestock, transfer or other disposition (and any concurrent acquisitions of Investments by merger, consolidation, dissolution or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amountliquidation;
(f) any Wholly-Owned Subsidiary may change its entity form to, or otherwise convert to another form of entity, which is also a Wholly-Owned Subsidiary and is a grantor and guarantor under the Borrower may merge Guarantee and Collateral Agreement, or consolidate with engage in any other restructuring, provided that no assets of or ownership interests in any such Wholly-Owned Subsidiary shall be transferred to a Person so long as (i) which is not also a Wholly-Owned Subsidiary and a grantor and guarantor under the Borrower is the continuing or surviving entity in such transaction Guarantee and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuingCollateral Agreement; and
(g) the Borrower Holding Company may merge or consolidate with or into the Company, and each of the Subsidiary Guarantors Company may sell, lease, transfer merge or otherwise dispose of equipment consolidate with or other property or assets that do not consist of Investments so long as into the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearHolding Company."
Appears in 2 contracts
Sources: Note Agreement (TBC Corp), Note Purchase Agreement (TBC Corp)
Fundamental Changes. (a) The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, enter merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of its assets, or any of its Borrowing Base Properties or any of the Equity Interests of any Restricted Subsidiary (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, the Borrower or any Restricted Subsidiary may sell Hydrocarbons produced from its Oil and Gas Interests in the ordinary course of business, and if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Restricted Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity, (ii) any Restricted Subsidiary may merge into any other Restricted Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary, (iii) any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of merger its assets to the Borrower or consolidation or amalgamationto another Restricted Subsidiary, or liquidate, wind up (iv) any Restricted Subsidiary may liquidate or dissolve itself (or suffer any if the Borrower determines in good faith that such liquidation or dissolutiondissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of equipment and related items in the ordinary course of business, that are obsolete or no longer necessary in the business of the Borrower or any of its Restricted Subsidiaries or that is being replaced by equipment of comparable value and utility, (vi) subject to Section 2.12(b), the Borrower or any Restricted Subsidiary may sell, transfer, lease, exchange, abandon or otherwise dispose of Borrowing Base Properties with a value not exceeding, in the aggregate for the Borrower and its Restricted Subsidiaries taken as a whole, five percent (5%) of the Borrowing Base between Scheduled Redeterminations and (vii) with the prior written consent of Required Lenders and subject to Section 2.02(d) and Section 2.12(b), the Borrower or any Restricted Subsidiary may sell, transfer, lease, exchange, abandon or otherwise dispose of Borrowing Base Properties not otherwise permitted pursuant to the foregoing clause (vi). For purposes of the foregoing clause (vi), the value of any Oil and Gas Interests included in the Borrowing Base Properties shall be the Engineered Value of such Oil and Gas Interests and the value of all other Oil and Gas Interests shall be the value which would be assigned to such Oil and Gas Interests using the same methodology, assumptions and discount rates used to determine the Engineered Value of the Borrowing Base Properties as of the most recent Redetermination. In addition, for purposes of determining compliance with clause (vi) of this Section with respect to any exchange of Oil and Gas Interests, the value of such exchange shall be the net reduction, if any, in Engineered Value realized or resulting from such exchange.
(b) The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, acquire engage to any material extent in any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course than businesses of the day-to-day business activities of type conducted by the Borrower and its Restricted Subsidiaries and not in violation on the date of the terms and conditions execution of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (the Transactions and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect businesses reasonably related thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 2 contracts
Sources: Credit Agreement (Exco Resources Inc), Credit Agreement (EXCO Partners, LP)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter Enter into any transaction of merger or merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, Dispose of all or be a party to any acquisition of, any Personsubstantially all of its property or business, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Sectionthat:
(a) any Subsidiary Guarantor of the a Borrower may be merged or consolidated with or into a Borrower (provided that the Borrower shall be the continuing or surviving corporation) or with or into any other Subsidiary Guarantor; Wholly Owned Guarantor (provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Wholly Owned Guarantor shall be the continuing or surviving corporation), provided, in either case, that no U.S. Borrower and no Domestic Subsidiary shall merge or consolidate with or into any Non-U.S. Borrower;
(b) any Subsidiary Guarantor of the a Borrower may sell, lease, transfer or otherwise dispose Dispose of any or all of its assets (i) to the Borrower or any Wholly Owned Guarantor (upon voluntary liquidation or otherwise) or (ii) pursuant to the Borrower or any wholly owned Subsidiary Guarantor of the Borrowera Disposition permitted by Section 7.5;
(c) the capital stock of any Subsidiary of the a Borrower which is not a Guarantor may be sold, transferred merged or otherwise disposed consolidated with or into or may Dispose of any or all of its assets to the Borrower or any wholly owned other Subsidiary Guarantor of the a Borrower;; and
(d) the Obligors any Permitted gTLD Investments may sell, transfer be consummated; provided that in connection with any merger or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to consolidation occurring in connection with such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as Permitted gTLD Investment (i) after giving effect to such sale, transfer the continuing or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate surviving corporation of a Financial Officer to such effect merger or consolidation with a Borrower or a Wholly Owned Guarantor shall be a Borrower or a Wholly Owned Guarantor and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished no U.S. Borrower and no Domestic Subsidiary shall merge or consolidate with or into any Non-U.S. Borrower or entity; provided, that in no event will any U.S. Borrower, as a result of such release any merger, consolidation or (y) the Borrowing Base immediately after giving effect amalgamation otherwise permitted hereunder, change its jurisdiction of organization to such release is at least 110% a jurisdiction outside of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearUnited States.
Appears in 2 contracts
Sources: Credit Agreement (Rightside Group, Ltd.), Credit Agreement (Rightside Group, Ltd.)
Fundamental Changes. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, Person except for purchases or acquisitions of Investments inventory and other assets property to be sold or used in the normal ordinary course of the day-to-day business activities of the Borrower business, Investments permitted under Section 7.05 and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentCapital Expenditures. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsbusiness or property, whether now owned or hereafter acquiredacquired (including, without limitation, receivables and leasehold interests, but excluding (x) assets obsolete or worn out property, tools or equipment no longer used or useful in its business and (y) any inventory or other than Investments) property sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day and on ordinary business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investmentsterms). Notwithstanding the foregoing provisions of this SectionSection 7.04:
(a) any Restricted Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower Company or any other Subsidiary GuarantorRestricted Subsidiary; provided that (i) if any such transaction shall be between a Restricted Subsidiary Guarantor and a wholly owned Wholly Owned Restricted Subsidiary Guarantorof the Company, a Wholly Owned Restricted Subsidiary shall be the continuing or surviving corporation and (ii) if any such transaction shall be between the Company and a Restricted Subsidiary, the wholly owned Subsidiary Guarantor Company shall be the continuing or surviving corporation;
(b) any Restricted Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to the Borrower Company or any wholly owned Wholly Owned Restricted Subsidiary Guarantor of the BorrowerCompany;
(c) the capital stock of any Restricted Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower Company or any wholly owned Wholly Owned Restricted Subsidiary Guarantor of the BorrowerCompany;
(d) the Obligors Company or any of its Restricted Subsidiaries may sellsell assets (including, transfer or otherwise dispose without limitation, capital stock issued by any of Investments their respective Subsidiaries) for fair market value provided that (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loansi) the Covered Debt Amount does aggregate amount of Disposition Investments and other non-cash proceeds (valued at the fair market value thereof determined in good faith by the Board of Directors of the Company) received by the seller in the sale of any asset shall not exceed 25% of the Borrowing Basetotal sales price for such asset (including (A) the amount of liabilities, if any, assumed as a portion of the sales price and (B) the amount of any repayment by the seller of the principal of Indebtedness to the extent that (X) such Indebtedness is secured by a Lien on such asset and (Y) the seller is required by the transferee of (or holder of a Lien on) such assets to repay such principal as a condition to the purchase of such asset) and (ii) no more than 10% of EBITDA for any fiscal year of the Company shall be attributable to all such assets so sold in the following fiscal year of the Company;
(e) the Obligors Company or any Wholly Owned Restricted Subsidiary of the Company may sellacquire any business, transfer and the related assets, of any other Person including of an Unrestricted Subsidiary (whether by way of purchase of assets or otherwise dispose of Investments to a Financing Subsidiary stock, by merger or consolidation or otherwise), so long as as:
(i) such Acquisition (if by purchase of assets, merger or consolidation) shall be effected in such manner so that the acquired business, and the related assets, are owned either by the Company or a Wholly Owned Restricted Subsidiary of the Company and, if effected by merger or consolidation involving the Company, the Company shall be the continuing or surviving entity and, if effected by merger or consolidation involving a Wholly Owned Restricted Subsidiary of the Company, such Wholly Owned Restricted Subsidiary shall be the continuing or surviving entity;
(ii) such Acquisition (if by purchase of stock) shall be effected in such manner so that the acquired entity becomes a Wholly Owned Restricted Subsidiary of the Company;
(iii) after giving effect to such saleAcquisition the Company shall be in compliance with Section 7.09 (the determination of such compliance to be calculated on a pro forma basis, transfer or other disposition (as at the end of and for the period of four fiscal quarters most recently ended prior to the date of such Acquisition for which financial statements of the Company and its Restricted Subsidiaries are available, under the assumption that such Acquisition shall have occurred, and any concurrent acquisitions Indebtedness in connection therewith shall have been incurred, at the beginning of Investments or payment the applicable period, and under the assumption that interest for such period had been equal to the actual weighted average interest rate in effect for the Loans hereunder on the date of outstanding Loanssuch Acquisition) and, in the Covered Debt Amount does not event that the aggregate amount of expenditures in respect of such Acquisition shall exceed $100,000,000, the Borrowing Base and the Borrower delivers Company shall have delivered to the Administrative Agent a certificate of a Financial Officer showing calculations in reasonable detail to such effect and demonstrate compliance with this subclause (iiiii); and
(iv) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof Acquisition and after giving effect thereto, no Default shall have occurred or and be continuing;
(f) the Company and its Restricted Subsidiaries may dispose of any one or more outdoor properties in exchange for one or more other outdoor properties (including logo signage businesses), so long as the percentage of the aggregate EBITDA attributable to the properties so disposed of during any single fiscal year does not exceed 10% of the aggregate EBITDA of the Company and its Restricted Subsidiaries for the most recently-ended fiscal year (such EBITDA to be determined for these purposes without giving effect to the last paragraph of the definition of such term in Section 1.01); and
(g) the Borrower and each of the Subsidiary Guarantors may sellany sale, leaseassignment, transfer or otherwise dispose other disposition of equipment property by the Company or other property or assets any Restricted Subsidiary that do not consist of Investments so long would be permitted as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearan Investment pursuant to Section 7.05(a) shall be permitted under this Section 7.04.
Appears in 2 contracts
Sources: Credit Agreement (Lamar Media Corp/De), Credit Agreement (Lamar Media Corp/De)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than SBIC Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including, without limitation, Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. The Borrower will not, nor will it permit any of its Subsidiaries to, file a certificate of division, adopt a plan of division or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to applicable law with respect to any corporation, limited liability company, partnership or other entity). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be (i) between a Subsidiary or a wholly owned Subsidiary Guarantor and the Borrower, the Borrower shall be the continuing or surviving entity and (ii) between a Subsidiary and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing an SBIC Subsidiary) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than ownership interests in SBIC Subsidiaries), Cash and Cash Equivalents to a Financing an SBIC Subsidiary so long as (i) prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and no Default or Event of Default exists, and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110120% of the Covered Debt Amount;
(f) any Subsidiary of the Borrower may be liquidated or dissolved; provided that (i) in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower and (ii) the Borrower determines in good faith that such liquidation is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(g) the Borrower may merge or consolidate with any other Person Person, so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and;
(gh) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year; and
(i) any non-Obligor Subsidiary may be merged or consolidated with or into any other non-Obligor Subsidiary.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (FIDUS INVESTMENT Corp), Senior Secured Revolving Credit Agreement (FIDUS INVESTMENT Corp)
Fundamental Changes. (a) The Borrower will not, nor and will it not permit any Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions), or engage in a sale/leaseback transaction with respect to, any substantial part of its assets, any trade receivables (other than an assignment in connection with the collection thereof in the ordinary course of business), or all or substantially all of the Subsidiary Guarantors tostock of any of its Subsidiaries (in each case, enter whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (i) any Subsidiary/Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (ii) any Subsidiary/Person may merge into any Subsidiary in a transaction in which the surviving entity is a Subsidiary, (iii) any Subsidiary may sell, transfer, lease or otherwise dispose of merger its assets to the Borrower or consolidation or amalgamationto another Subsidiary, or liquidate, wind up (iv) any Subsidiary may liquidate or dissolve itself (or suffer any if the Borrower determines in good faith that such liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets dissolution is in the normal course of the day-to-day business activities best interests of the Borrower and the assets of such Subsidiary are distributed to Borrower in liquidation or dissolution, provided that any such merger involving a Person that is not a wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04, and (v) Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, may sell, leasetransfer, transfer or otherwise dispose of, of (in one transaction or a series of transactions), any part of its assetsor engage in a sale/leaseback transaction with respect to, whether now owned assets if the consideration received is in cash or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject equivalents at least equal to the provisions fair market value of clauses (d) such assets and (e) belowthe aggregate consideration received does not exceed $15,000,000 for all such sales, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged transfers, or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;dispositions.
(b) The Borrower will not, and will not permit any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) Subsidiaries to, engage to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of material extent in any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (business other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearTableware Business.
Appears in 2 contracts
Sources: Loan Agreement (Oneida LTD), Credit Agreement (Oneida LTD)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock Capital Stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock Capital Stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of (including by way of consolidation or merger)
(i) to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerBorrower or (ii) so long as such transaction results in an Obligor receiving the proceeds of such disposition, to any other Person, provided that in the case of this clause (ii) if such Subsidiary is a Subsidiary Guarantor or holds any Portfolio Investments, the Borrower would not have been prohibited from disposing of any such Portfolio Investments to such other Person under any other term of this Agreement;
(d) the Obligors may sell, transfer or otherwise dispose Dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) either (x) the Covered Debt Amount does not exceed the Borrowing BaseBase or (y) if such sale, transfer or other disposition is made pursuant to, and in accordance with, a plan submitted and accepted in accordance with clause (e) of Article VII or if the Administrative Agent otherwise consents in writing, the amount by which the Covered Debt Amount exceeds the Borrowing Base is reduced thereby;
(e) the Obligors may sell, transfer or otherwise dispose Dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with (or acquire all or substantially all of the assets of) any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and;
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year; and
(h) the Obligors may transfer assets to a Financing Subsidiary for the sole purpose of facilitating the transfer of assets from one Financing Subsidiary (or a Subsidiary that was a Financing Subsidiary immediately prior to such disposition) to another Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”), provided that (i) no Default exists or is continuing at such time, (ii) the Covered Debt Amount shall not exceed the Borrowing Base at such time and (iii) the Transferred Assets were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day that such assets are transferred by such Obligor to the transferee Financing Subsidiary.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Goldman Sachs BDC, Inc.), Senior Secured Revolving Credit Agreement (Goldman Sachs BDC, Inc.)
Fundamental Changes. The Borrower Except for (a) the liquidation of Thunder Press into its parent company, ▇▇▇▇▇▇ Publishing Group, Inc., and (b) the merger of ▇▇▇▇▇▇▇ Publications Corporation with and into TL Enterprises, Inc., each of which shall occur on or prior to the Effective Date, no Credit Party will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower No Credit Party will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, Person except for purchases or acquisitions of Investments inventory and other assets property to be sold or used in the normal ordinary course of the day-to-day business activities of the Borrower business, Investments permitted under Section 7.5 and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentCapital Expenditures permitted under Section 7.9(e). The Borrower No Credit Party will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any material part of its assetsbusiness or property, whether now owned or hereafter acquiredacquired (including, without limitation, receivables and leasehold interests, but excluding (x) assets obsolete or worn-out property, including leasehold interests, no longer used or useful in its business, (y) any inventory or other than Investments) property sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day and on ordinary business activities of the Borrower and its Subsidiaries) terms and (yz) subject Sale-Leaseback Transactions to the provisions of clauses (d) and (e) below, Investmentsextent permitted by Section 7.14. Notwithstanding the foregoing provisions of this SectionSection 7.4:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantoror into the Borrower; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary GuarantorWholly Owned Subsidiary, the wholly owned Wholly Owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor that is a Wholly Owned Subsidiary of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor that is a Wholly Owned Subsidiary of the Borrower;; and
(d) the Obligors any Credit Party may sellconsummate any Acquisition with any other Person (whether by way of purchase of assets or stock, transfer by merger or otherwise dispose of Investments (other than to a Financing Subsidiary) consolidation or otherwise), so long as after giving effect to such sale, transfer or other disposition as:
(i) the aggregate purchase price (including assumed liabilities and any concurrent acquisitions non-cash consideration valued at the fair market value thereof determined in good faith by the Board of Investments or payment Directors of outstanding Loansthe Borrower) paid by the Covered Debt Amount does not Credit Parties for Acquisitions in any fiscal year shall not, without the prior consent of the Required Senior Lenders, exceed the Borrowing Base$15,000,000;
(eii) such Acquisition (if by purchase of assets, merger or consolidation) shall be effected in such manner so that the acquired business, and the related assets, are owned by a Credit Party and, if effected by merger or consolidation involving a Credit Party, the Credit Party shall be the continuing or surviving entity;
(iii) such Acquisition (if by purchase of stock) shall be effected in such manner so that the acquired entity becomes a Wholly Owned Subsidiary of a Credit Party;
(iv) the Obligors may sell, transfer type of business of the business acquired in such Acquisition shall be one of the types of business engaged in by the Credit Parties as of the Effective Date and such business shall be located in the United States or otherwise dispose of Investments to a Financing Subsidiary so long as Canada;
(iv) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) Acquisition the Covered Debt Amount does not exceed the Borrowing Base Credit Parties shall be in compliance with Section 7.9 and the Borrower delivers shall have delivered to the Administrative Agent a certificate of a Financial Officer showing such calculations in reasonable detail to demonstrate such effect and compliance; and
(iivi) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof Acquisition and after giving effect thereto, no Default shall have occurred or and be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 2 contracts
Sources: Senior Secured Floating Rate Note Purchase Agreement (Affinity Group Holding Inc), Credit Agreement (Affinity Group Holding Inc)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, Person except for purchases or acquisitions of Investments inventory and other property (other than assets and related rights constituting an ongoing business) to be sold or used in the normal ordinary course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentInvestments permitted under Section 6.04. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsbusiness or property, whether now owned or hereafter acquiredacquired (including receivables and leasehold interests, but excluding (x) assets obsolete or worn-out property, tools or equipment no longer used or useful in its business, (y) any inventory or other than Investments) property sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day and on ordinary business activities of the Borrower and its Subsidiaries) terms and (yz) subject to the provisions of clauses (d) and (e) below, Investmentsany Disposition resulting from a Casualty Event). Notwithstanding the foregoing provisions of this Section, if no Default shall have occurred and be continuing or would result therefrom:
(a) any Restricted Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary GuarantorRestricted Subsidiary; provided that (i) if any such transaction shall be between a Restricted Subsidiary and the Borrower, the Borrower shall be the continuing or surviving entity and (ii) if any such transaction shall be between a Restricted Subsidiary that is a Guarantor and a wholly owned Restricted Subsidiary that is not a Guarantor, the wholly owned Subsidiary such Guarantor shall be the continuing or surviving corporationentity;
(b) any Restricted Subsidiary Guarantor of the Borrower may merge into the Person such Restricted Subsidiary was formed to acquire in connection with the Acquisition or any Permitted Acquisition;
(c) any Restricted Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned other Restricted Subsidiary; provided that if any such transaction shall be between a Restricted Subsidiary that is a Guarantor and a Restricted Subsidiary that is not a Guarantor, such Guarantor shall be the recipient of the Borrowersuch property;
(cd) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing BaseGuarantor;
(e) the Obligors Borrower or any Restricted Subsidiary may sellsell to any Governmental Authority for fair market value (as determined by an independent appraisal made by a Person acceptable to the Administrative Agent) (or, transfer if less, the net book value when required by such Governmental Authority) any Facility managed or otherwise dispose of Investments operated by the Borrower or such Restricted Subsidiary pursuant to a Financing Subsidiary Government Contract with such Governmental Authority so long as (i) after giving effect to the aggregate amount of non-cash proceeds from all such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does sales do not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount$10,000,000;
(f) the Borrower or any Restricted Subsidiary may merge sell or consolidate discount without recourse accounts receivable arising in the ordinary course of business in connection with any other Person so long as (i) the Borrower is compromise or collection thereof in the continuing ordinary course of business, provided that the aggregate face or surviving entity in principal amount of all such transaction and (ii) at accounts receivable sold or discounted after the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; anddate hereof may not exceed $10,000,000;
(g) the Borrower and each of the or any Restricted Subsidiary Guarantors may sell, lease, transfer sell or otherwise dispose of equipment assets not otherwise permitted by this Section 6.03; provided that (i) such sale or other property disposition shall be for cash for fair market value (as determined in good faith by the board of directors of the Borrower, provided that, if the board of directors of the Borrower so determines that the fair market value of such assets is equal to or assets that do not consist of Investments so long as greater than $50,000,000, then the fair market value shall be determined by an independent appraisal made by a Person acceptable to the Administrative Agent) and (ii) the aggregate amount book value of all such sales, leases, transfer and dispositions does assets sold or disposed of pursuant to this clause (g) shall not exceed $5,000,000 300,000,000 in the aggregate after the date hereof;
(h) the Borrower or any fiscal yearRestricted Subsidiary may sell any property, business or assets acquired in a Permitted Acquisition to the extent that the same is not related to the construction, design, operation, development or operation of any Facility;
(i) the Borrower or any Restricted Subsidiary may sell Permitted Investments in the ordinary course of business;
(j) the Borrower or any Restricted Subsidiary may make the Acquisition and Permitted Acquisitions; and
(k) any Restricted Subsidiary of the Borrower may be merged or consolidated into any Unrestricted Subsidiary of the Borrower provided that Borrower designates the continuing or surviving entity as an Unrestricted Subsidiary in compliance with Section 5.09(d) hereof. For purposes of this Section 6.03, all determinations of fair market value of any Facility shall include consideration of rights under any Government Contract transferred in connection therewith.
Appears in 2 contracts
Sources: Credit Agreement (Geo Group Inc), Credit Agreement (Geo Group Inc)
Fundamental Changes. The Borrower will notGuarantor shall not (a) wind up, nor will it permit any of the Subsidiary Guarantors toliquidate, or dissolve its affairs, (b) enter into any transaction of merger or consolidation or amalgamationconsolidation, unless the surviving entity, if other than the Guarantor, assumes all of the obligations and satisfies all of the representations, warranties and covenants of Guarantor hereunder, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, c) sell, lease, transfer or otherwise dispose ofof (or agree to do any of the foregoing) all or substantially all of its property or assets, except in one a transaction or a series of transactionstransactions in connection with any reorganization of Guarantor and/or its Subsidiaries after which Guarantor (or any surviving entity) shall remain in compliance with the representations, warranties and covenants contained herein, including Section 5 and any part of its assetssuch transferee(s) shall be or become jointly and severally liable with Guarantor (or any surviving entity or entities) for Guarantor’s obligations hereunder, whether now owned without Buyer’s prior written consent, provided that the foregoing shall not restrict Seller’s ability to concurrently repurchase all Purchased Assets as set forth in the Transaction Documents, and shall not restrict Guarantor from (i) originating, buying, or hereafter acquiredselling real estate mortgage, but excluding mezzanine, or other loans (x) assets (other than Investments) sold or disposed of any interest therein), or accepting full or partial payment in respect thereof, or releasing any collateral securing loans, in each case in the ordinary course of Guarantor’s business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and operations (ii) either admitting any shareholders to Guarantor after the date hereof, (xiii) consenting to or otherwise effecting the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result transfer, redemption or withdrawal of such release any shareholder, or (yiv) making or granting any modification to or waiver under the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person Guarantor’s organizational documents, so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and as, after giving effect thereto, in the case of preceding clauses (ii), (iii) and (iv) no Default Change of Control shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearoccur.
Appears in 2 contracts
Sources: Payment Guaranty, Payment Guaranty (Benefit Street Partners Realty Trust, Inc.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than any SPE Subsidiaries or Immaterial Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than any Financing Subsidiaries or Immaterial Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than any Financing Subsidiaries or Immaterial Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash and dispositions of investments in connection with exits and work-outs in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this Section). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that (i) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing, (ii) if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between the Borrower and a Subsidiary Guarantor, the Borrower shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such salePortfolio Investments, transfer or other disposition (Cash and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments Cash Equivalents to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition release (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect to the Administrative Agent and (ii) either (x) the amount by which of any excess availability under the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(fe) the Borrower or any Subsidiary may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; andprovided that (i) if any such transaction shall be between the Borrower and another Person, (A) the Borrower shall be the continuing or surviving corporation, (B) Reorganization Merger Sub shall be the continuing or surviving entity, in which case, on and after the Reorganization Amendments Effective Date and consummation of the Reorganization Merger, Reorganization Merger Sub will succeed to, and be substituted for the Borrower under this Agreement, or (C) if the Person (other than Reorganization Merger Sub) formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Company”), (x) the Successor Company shall be an entity organized or existing under the Laws of the United States, any state thereof, the District of Columbia or any territory thereof, and (y) the Successor Company shall execute and deliver a Borrower Assumption Agreement to the Administrative Agent and (z) (I) solely to the extent applicable, the Administrative Agent shall have received all documentation and other information reasonably requested in writing by the Administrative Agent or any Lender (through the Administrative Agent) about the Successor Company at least ten Business Days in advance of the date of consummation of the relevant merger or consolidation, which documentation and other information is required by applicable regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, and the delivery of such “know your customer” and anti-money laundering information shall be satisfactory to the applicable requesting Lenders and (II) solely to the extent reasonably requested in writing by the Administrative Agent at least ten Business Days in advance of the date of consummation of the relevant merger or consolidation, a customary written opinion of counsel to the Successor Company; provided, further, that if the foregoing clauses (x), (y) and (z) are satisfied, the Successor Company will succeed to, and be substituted for the Borrower under this Agreement, (ii) if any such transaction shall be between a wholly owned Subsidiary Guarantor and another Person (other than the Borrower), a wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between a Subsidiary Guarantor and another Person (other than the Borrower or a wholly owned Subsidiary Guarantor), a Subsidiary Guarantor shall be the continuing or surviving corporation;
(gf) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year;
(g) any Subsidiary may voluntarily dissolve or liquidate if such Subsidiary that does not own, legally or beneficially, assets which in aggregate have a value of $500,000 or more at such time of dissolution or liquidation;
(h) the Borrower or the other Obligors may dissolve or liquidate any SBIC Subsidiary; provided that no portion of any Indebtedness or any other obligations (contingent or otherwise) of such SBIC Subsidiary (a) is, or would as a result of dissolution or liquidation hereunder become, recourse to or obligate the Borrower or any other Obligor (other than any SBIC Subsidiary) in any way, or (b) subjects, or would as a result of the dissolution or liquidation hereunder subject, any property of the Borrower or any other Obligor (other than any SBIC Subsidiary) to the satisfaction of such Indebtedness; and
(i) nothing contained in this Section 6.03 shall restrict or prohibit the consummation of the Reorganization Transactions or any Other Reorganization Transactions.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (BlackRock TCP Capital Corp.), Senior Secured Revolving Credit Agreement (BlackRock TCP Capital Corp.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors other Obligor to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors other Obligor to, acquire any business or property from, or capital stock Equity Interests of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors other Obligor to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject subject, to the extent applicable, to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this Section). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerBorrower and may dissolve itself so long as it does not hold any assets;
(c) the capital stock Equity Interests of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a Financing Designated Subsidiary under clause (a) of the definition thereof so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansIndebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect to the Administrative Agent and (ii) either (x) the amount by which of any excess availability under the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release sale, transfer or disposition is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release sale, transfer or disposition is at least 110% of the Covered Debt Amount;
(fe) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(gf) the Borrower and each of the Subsidiary Guarantors other Obligors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 3,000,000 in any fiscal year.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Oaktree Finance, LLC), Senior Secured Revolving Credit Agreement (Oaktree Capital Group, LLC)
Fundamental Changes. The Borrower will not(a) No Borrowing Base Covenant Subsidiary shall, nor will shall it permit any of the Subsidiary Guarantors its Subsidiaries (other than an Unrestricted Real Property Subsidiary) to, enter directly or indirectly, merge, dissolve, liquidate, consolidate with or into any transaction of merger or consolidation or amalgamationanother Person, or liquidate, wind up or dissolve itself Dispose of (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, whether in one transaction or in a series of transactions, any part ) all or substantially all of its assets, assets (whether now owned or hereafter acquired) to or in favor of any Person, but excluding except that (x1) this Section 7.04(a) shall not restrict or prohibit any Disposition permitted under Section 7.05(a) or any Restricted Payment permitted under Section 7.06, and (2) so long as no Default exists or would result therefrom, any Secured Guarantor or Subsidiary thereof may merge, liquidate or dissolve into, or consolidate with, or Dispose of assets (to, any one or more other than Investments) sold or disposed Subsidiaries of the Borrower; provided that, in the ordinary course case of business this clause (including to make expenditures of cash in the normal course of the day-to-day business activities 2), (i) if any Secured Guarantor is merging with, liquidating into or consolidating with another Subsidiary of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between is not a Subsidiary Guarantor and a wholly owned Subsidiary Secured Guarantor, the wholly owned Subsidiary such Secured Guarantor shall be the continuing or surviving corporation;
Person, (bii) if any Secured Guarantor is Disposing of assets to another Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
, such other Subsidiary is also a Secured Guarantor, (ciii) the capital stock of if any Borrowing Base Subsidiary is merging with, liquidating into or consolidating with another Subsidiary of the Borrower may that is not a Borrowing Base Subsidiary, such Borrowing Base Subsidiary shall be soldthe continuing or surviving Person, transferred or otherwise disposed (iv) if any Borrowing Base Subsidiary is Disposing of assets to the Borrower or any wholly owned another Subsidiary Guarantor of the Borrower;
, such other Subsidiary is also a Borrowing Base Subsidiary, (dv) if the Obligors may sellEquity Interests of any Person involved in such merger, transfer liquidation or otherwise dispose consolidation are Collateral under the Security Agreement, then the Equity Interests of Investments the survivor of such merger or consolidation, or Equity Interests of the Person to whom the other Subsidiary has liquidated into, as applicable, shall be pledged as Collateral under the Security Agreement (other than to a Financing Subsidiary) so long as after giving effect the same extent pledged prior to such saletransaction), transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (ivi) after giving effect to such saletransaction or series of transactions, transfer or other disposition 100% of the Equity Interests (and any concurrent acquisitions or, in the case of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the a Borrowing Base Subsidiary that is an Excluded Foreign Subsidiary, 100% of the non-voting Equity Interests (if any) and 65% of the Borrower delivers voting Equity Interests) of each Borrowing Base Subsidiary involved in or affected by such transaction or series of transactions (other than any Encumbered Real Property Borrowing Base Subsidiary) and of each Encumbered Real Property Pledged Subsidiary are subject to a perfected first priority Lien (subject to Permitted Equity Encumbrances) in favor of the Administrative Agent for the benefit of the Secured Parties and each such Secured Guarantor and Borrowing Base Subsidiary is a certificate Wholly Owned Subsidiary of the Borrower and (vii) such transaction is permitted under Section 2.15.
(b) The Borrower shall not, nor shall it permit any of its Subsidiaries (other than any Borrowing Base Covenant Subsidiary and any Subsidiary of a Financial Officer Borrowing Base Covenant Subsidiary) to, directly or indirectly, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default has occurred and is continuing or would result therefrom:
(i) any such effect and (ii) either Subsidiary may liquidate or dissolve into, or Dispose of all or substantially all its assets to (x) the amount by which the another Subsidiary that is not a Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release Covenant Subsidiary or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amounta Loan Party;
(fii) the Borrower any such Subsidiary may merge into or consolidate with any other Person so long as or permit any other Person to merge into or consolidate with it; provided, however, that in each case, immediately after giving effect thereto in the case of any such merger to which any Specified Loan Party is a party, the survivor is, or upon such merger will by operation of law or otherwise be, a Specified Loan Party; and
(iiii) any Disposition (including any Disposition of Equity Interests) by any such Subsidiary that is permitted by clause (b)(ii) or (b)(iv) of Section 7.05 is permitted. provided that, notwithstanding the foregoing, (x) clauses (b)(i), (ii) and (iii) shall not permit any transaction unless after giving effect thereto, each Guarantor involved in or affected by such transaction will be a Wholly Owned Subsidiary of the Borrower, (y) clause (b)(ii) shall not permit any transaction unless (1) such transaction shall not in the reasonable opinion of the Borrower is at the continuing or surviving entity in time of such transaction and (iior the commitment to enter into such transaction), be reasonably expected to result in a Material Adverse Effect, (2) at the time thereof and after giving effect theretoof such transaction, no Default shall have occurred and be continuing or be continuing; and
would result therefrom, and (g3) taking into account such transaction, the Borrower and each its Subsidiaries shall be in compliance, on a pro forma basis, with the provisions of the Section 7.12 and (z) nothing in this clause (b) will permit a transaction that is not permitted by Section 2.15.
(c) The Borrower shall not permit any Unrestricted Real Property Subsidiary Guarantors may sellto, leasedirectly or indirectly, transfer merge, dissolve, liquidate, consolidate with or otherwise dispose into another Person, or Dispose of equipment (whether in one transaction or other property in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, in a transaction that do is not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearpermitted by Section 2.15.
Appears in 2 contracts
Sources: Credit Agreement (Starwood Property Trust, Inc.), Credit Agreement (Starwood Property Trust, Inc.)
Fundamental Changes. (a) The Borrower Company will not, nor and will it not permit any of the Subsidiary Guarantors its Subsidiaries to, enter merge into or consolidate with any transaction of merger or consolidation or amalgamationother Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business other Person to merge into or property fromconsolidate with it, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, any part ) all or substantially all of its assets, assets (whether now owned or hereafter acquired), but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) belowliquidate or dissolve, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that except that, if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and immediately after giving effect thereto, thereto no Default shall have occurred or and be continuing; and
, (gi) any Person may merge into the Borrower and each of Company in a transaction in which the Company is the surviving corporation, (ii) any Person may merge into any Subsidiary Guarantors in a transaction in which the surviving entity is a Wholly Owned Subsidiary, (iii) any Subsidiary may sell, leasetransfer, transfer lease or otherwise dispose of equipment its assets to the Company or other property to a Wholly Owned Subsidiary and (iv) any Subsidiary may merge into or assets consolidate with another Person, or may liquidate or dissolve, if the Company determines in good faith that do such merger, consolidation, liquidation or dissolution is in the best interests of the Company and is not consist materially disadvantageous to the Lenders; provided that a Borrowing Subsidiary may not merge, consolidate, liquidate or dissolve unless, in addition to the foregoing conditions, the surviving entity, or the entity into which such Borrowing Subsidiary liquidates or dissolves, is or becomes a Borrower and assumes all the obligations of Investments so long as the aggregate amount such Borrowing Subsidiary hereunder and under its Borrowing Subsidiary Agreement (if any).
(b) The Company will not, and will not permit any of all such salesits Subsidiaries to, leases, transfer and dispositions does not exceed $5,000,000 engage to any material extent in any fiscal yearbusiness other than businesses of the type conducted by the Company and its Subsidiaries on the date hereof and businesses reasonably related thereto.
Appears in 2 contracts
Sources: Credit Agreement (Fort James Corp), Credit Agreement (Fort Howard Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Portfolio Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with with, or acquire all or substantially all of the assets of, any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (TPG Specialty Lending, Inc.), Senior Secured Revolving Credit Agreement (TPG Specialty Lending, Inc.)
Fundamental Changes. The (a) Neither Borrower will notwill, nor ------------------- will it permit any of the Subsidiary Guarantors its subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up liquidate or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer ) or otherwise dispose ofwind up, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person corporation, or sell, lease or otherwise dispose of all or any part of its assets (other than in the ordinary course of business), except that, so long as no Default then exists or would result therefrom:
(i) the Borrower is the continuing Subsidiaries which are not Material Subsidiaries may be liquidated or surviving entity in such transaction dissolved and their affairs wound up;
(ii) A Borrower or Subsidiary may merge, consolidate or amalgamate with any other Person; provided, that such Borrower or -------- Subsidiary, as the case may be, is the surviving, continuing or resulting Person in such merger, consolidation or amalgamation and, in the case of a Subsidiary, continues to be a Subsidiary;
(iii) any Subsidiary (other than a Borrower) may merge into a Borrower or another Subsidiary;
(iv) any Subsidiary (other than a Borrower) may sell, lease or otherwise dispose of any of its assets (whether now owned or hereafter acquired and including shares of capital stock, receivables and leasehold interests) to a Borrower or to another Subsidiary; and
(v) a Borrower may sell, lease or otherwise dispose of less than all of its assets (whether now owned or hereafter acquired and including shares of capital stock, receivables and leasehold interests) to any Person, and any Subsidiary may sell, lease or otherwise dispose of all or any part of its assets to a Person other than a Borrower or another Subsidiary (whether in connection with a merger, consolidation or amalgamation of such Subsidiary into a Person other than a Borrower or another Subsidiary or otherwise), in each case, for a consideration which represents the fair market value of such assets (as determined in good faith by an Authorized Officer of such Subsidiary) of such Subsidiary at the time thereof of such sale, lease or other disposition; provided, that immediately after such sale, lease or other disposition and -------- after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each aggregate market value of the Subsidiary Guarantors may sellall assets so sold, lease, transfer leased or otherwise dispose disposed of equipment or other property or assets that do not consist of Investments so long as by AI and the aggregate amount of all such sales, leases, transfer and dispositions Subsidiaries during any Fiscal Year does not exceed $5,000,000 10% of the consolidated assets of the Parent and its subsidiaries as shown in the consolidated financial statements of the Parent and the Subsidiaries as at the end of the Fiscal Year next preceding the date on which such determination is made.
(b) Neither Borrower shall, nor shall it permit any of its subsidiaries to, at any time, acquire any assets of or interests in any fiscal yearother Person for a total consideration in excess of $250,000,000, unless such Borrower shall provide to the Administrative Agent and the Lenders, not less than 10 days prior to the proposed acquisition, calculations specifically demonstrating compliance with the financial covenants in Section 5.14, both before and after giving effect to the proposed acquisition.
Appears in 1 contract
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including, without limitation, Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (other than the Financing Subsidiaries) (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries (other than the Financing Subsidiaries)) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) : any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) ; any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
; any Subsidiary of the Borrower may be liquidated or dissolved; provided that (ci) in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower and (ii) the Borrower determines in good faith that such liquidation is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) ; the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base;
(e) ; the Obligors may sell, transfer or otherwise dispose of Investments Portfolio Investments, Cash and Cash Equivalents to a Financing Subsidiary so long as (i) prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and no Default exists and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect effect, and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110120% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Medley Capital Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors other Obligor to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors other Obligor to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors other Obligor to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (other than the transfer not made in accordance with the following clause (y) or (z) of Portfolio Investments to Unrestricted Subsidiaries or Non-Consolidated Subsidiaries), (y) subject to the provisions of clauses clause (d) below, Portfolio Investments (to the extent not otherwise included in clause (x) of this Section) and (z) subject to the provisions of clause (e) below, Investmentsany Obligor’s ownership interest in any Unrestricted Subsidiary or Non-Consolidated Subsidiary. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower Obligor may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than direct ownership interests in Unrestricted Subsidiaries or Non-Consolidated Subsidiaries) to a Financing Subsidiary) an Unrestricted Subsidiary or Non-Consolidated Subsidiary so long as (i) immediately after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing BaseBase and the Borrower delivers a certificate of a Financial Officer to such effect to the Administrative Agent and (ii) either (x) the amount of any excess availability under the Borrowing Base immediately prior to such sale, transfer or other disposition is not diminished as a result of such sale, transfer or other disposition or (y) the Borrowing Base immediately after giving effect to such sale, transfer or other disposition is at least 110% of the Covered Debt Amount;
(e) the Obligors may sell, transfer or otherwise dispose of Investments investments and other interests in any Unrestricted Subsidiary or Non-Consolidated Subsidiary to a Financing any Person; provided that no such sale, transfer or other disposition shall be made to any Subsidiary so long as (i) that is not an Obligor, unless immediately after giving effect to such sale, transfer or other disposition (disposition, the Borrower’s and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base its Subsidiaries’ investments in Unrestricted Subsidiaries and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is Non-Consolidated Subsidiaries representing at least 11075% of the Covered Debt Amountaggregate value of investments in Unrestricted Subsidiaries and Non-Consolidated Subsidiaries (calculated as set forth in the last sentence of Section 6.02) are held directly by Obligors and not subject to an Excluded Entity Lien; provided further, that, notwithstanding that a transfer may not satisfy such 75% requirement, such transfer shall nevertheless be permitted if it is required by law, rule, regulation or interpretive position of the Securities and Exchange Commission;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors Obligors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 25,000,000 in any fiscal year.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Apollo Investment Corp)
Fundamental Changes. The Borrower will notNo Credit Party shall merge, nor will it permit any of the Subsidiary Guarantors todissolve, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up consolidate with or dissolve itself (into another Person; except that so long as no Default or suffer any liquidation Event of Default exists or dissolution). The Borrower will notwould result therefrom, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may merge or consolidate with any other Borrower, (b) any Person (including any Unrestricted Subsidiary) which is not a Credit Party may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; Credit Party provided that if any either such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor Credit Party shall be the continuing or surviving corporation;
corporation or the continuing or surviving corporation shall become a Credit Party as herein provided, (bc) any Subsidiary Guarantor of the Borrower may sell, lease, transfer be merged or otherwise dispose of consolidated with or into any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned other Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
and (d) any Subsidiary Guarantor may dissolve, liquidate or wind up its affairs at any time provided that such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect. Notwithstanding the Obligors may sellforegoing or anything else in this Agreement to the contrary, transfer no provision of this Agreement shall prohibit the REIT Guarantor, the LP Guarantor or otherwise dispose any other direct or indirect owner of Investments the Parent Borrower (other than to a Financing SubsidiaryBorrower) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as from (i) after giving effect to consummating a public offering of the Capital Stock of such saleentity, transfer including through the issuance of additional Capital Stock of such entity, or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either otherwise becoming a publicly traded entity, and no such actions shall constitute a Default or an Event of Default hereunder; provided, that (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is public offering would not diminished as result in a result Change of such release or Control and (y) the Borrowing Base immediately after giving effect Borrowers are otherwise in compliance with the applicable terms of this Agreement. Notwithstanding anything contained in this Agreement to such release is at least 110% the contrary, no provision of this Agreement shall prohibit the direct and indirect owners of the Covered Debt Amount;
(f) the Parent Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each from consummating a public offering of the Subsidiary Guarantors may sell, lease, transfer Capital Stock or from issuing Capital Stock of the direct and indirect owners of the Parent Borrower to any Person or otherwise dispose becoming a publicly traded entity and such actions shall not constitute a Default or Event of equipment or other property or assets Default, provided that do not consist the Credit Parties are in compliance with the applicable terms of Investments so long as this Agreement, including the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 financial covenants set forth in any fiscal yearSection 6.11.
Appears in 1 contract
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, person except for purchases or acquisitions of Investments inventory and other assets property to be sold or used in the normal ordinary course of the day-to-day business activities of the Borrower business, Investments permitted under Section 7.05 and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentCapital Expenditures permitted under Section 7.09(e). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsbusiness or property, whether now owned or hereafter acquiredacquired (including, without limitation, receivables and leasehold interests, but excluding (x) assets obsolete or worn-out property, tools or equipment no longer used or useful in its business and (y) any inventory or other than Investments) property sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day and on ordinary business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investmentsterms). Notwithstanding the foregoing provisions of this SectionSection 7.04:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary GuarantorSubsidiary; provided that (x) if any such transaction shall be between a Subsidiary and a Wholly Owned Subsidiary, the Wholly Owned Subsidiary shall be the continuing or surviving corporation and (y) that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary not a Subsidiary Guarantor, the wholly owned and such Subsidiary Guarantor shall be is not the continuing or surviving corporation, then the continuing or surviving corporation shall have assumed all of the obligations of such Subsidiary Guarantor hereunder and under the Pledge Agreement and (if not theretofore so pledged) all of the issued and outstanding capital stock of the continuing or surviving corporation shall be pledged under the Pledge Agreement;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release that is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.Credit Agreement 89 - 84 -
Appears in 1 contract
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries or Immaterial Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries or Immaterial Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including, without limitation, Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (other than the Financing Subsidiaries) (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries (other than the Financing Subsidiaries)) and (y) subject to the provisions of clauses (dde) and (eef) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) any Subsidiary of the Borrower may be liquidated or dissolved; provided that (i) in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower and (ii) the Borrower determines in good faith that such liquidation is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(d) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(de) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Collateral Base;
(ef) the Obligors may sell, transfer or otherwise dispose of Investments Portfolio Investments, Cash and Cash Equivalents to a Financing Subsidiary (other than the direct ownership interest in another Financing Subsidiary) so long as (i) prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Collateral Base and no Default exists and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect effect, and (ii) either (x) the amount by which the Borrowing Collateral Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Collateral Base immediately after giving effect to such release is at least 110120% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.;
(h) the Borrower may merge or consolidate with any other Person, so long as (i) the Borrower is the continuing or surviving entity in such transaction, (ii) at the time thereof and after giving effect thereto, no Default shall have occurred and be continuing and (iii) if such merger or consolidation occurs in connection with the acquisition of such Person, the transaction is permitted under Section 6.04 hereof; and
(i) an Obligor may transfer assets to a Financing Subsidiary for the sole purpose of facilitating the transfer of assets from one Financing Subsidiary (or a Subsidiary that was a Financing Subsidiary immediately prior to such disposition) to another Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”), provided that (i) no Default exists or is continuing at such time, (ii) the Covered Debt Amount shall not exceed the Collateral Base at such time and (iii) the Transferred Assets were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day that such assets are transferred by such Obligor to the transferee Financing Subsidiary.
Appears in 1 contract
Sources: Senior Secured Term Loan Credit Agreement (Medley Capital Corp)
Fundamental Changes. (a) The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, enter merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of its assets, or any of its Borrowing Base Properties or any of the Equity Interests of any Restricted Subsidiary (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, the Borrower or any Restricted Subsidiary may sell Hydrocarbons produced from its Oil and Gas Interests in the ordinary course of business, and if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Restricted Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity;
(ii) any Restricted Subsidiary may merge into any other Restricted Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary;
(iii) any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of merger its assets to the Borrower or consolidation to another Restricted Subsidiary;
(iv) the Borrower may sell, transfer, lease or amalgamation, or liquidate, wind up otherwise dispose of its assets to any Restricted Subsidiary;
(v) any Restricted Subsidiary may liquidate or dissolve itself (or suffer any if the Borrower determines in good faith that such liquidation or dissolutiondissolution is in the best interests of the Borrower and such Restricted Subsidiary and is not materially disadvantageous to the Lenders;
(vi) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of equipment and related items in the ordinary course of business, that are obsolete or no longer necessary in the business of the Borrower or any of its Restricted Subsidiaries or that is being replaced by equipment of comparable value and utility;
(vii) subject to Section 2.12(b). , the Borrower or any Restricted Subsidiary may sell, transfer, lease, exchange, abandon or otherwise dispose of Borrowing Base Properties (whether pursuant to a sale, transfer, lease, exchange or other disposition of all, but not less than all, of the Equity Interests of any Restricted Subsidiary or otherwise); provided that the Engineered Value (as assigned by the Administrative Agent) of all Borrowing Base Properties sold, transferred, leased, exchanged, abandoned or otherwise disposed of (calculated without including any Required JV Assignments) between Scheduled Redeterminations does not exceed, in the aggregate for all Credit Parties taken as a whole, five percent (5%) of the Borrowing Base most recently determined;
(viii) with the prior written consent of Required Lenders and subject to Section 2.02(d) and Section 2.12(b), the Borrower or any Restricted Subsidiary may sell, transfer, lease, exchange, abandon or otherwise dispose of Borrowing Base Properties (whether pursuant to a sale, transfer, lease, exchange or other disposition of Equity Interests of a Restricted Subsidiary or otherwise) not otherwise permitted pursuant to the foregoing clause (vii); provided, that the Credit Parties may not sell, transfer, lease, exchange, abandon or otherwise dispose of (in one transaction or a series of related transactions) all or substantially all of the Borrowing Base Properties (whether pursuant to a sale, transfer, lease, exchange or other disposition of Equity Interests of a Restricted Subsidiary or otherwise) without the prior written consent of all of the Lenders;
(ix) EOC or any Restricted Subsidiary may sell, transfer or assign to BG Production (a) an undivided 50% interest in Oil and Gas Interests acquired by EOC or any other Credit Party in the East Texas/North Louisiana Area and (b) 50% of the Equity Interests of any Unrestricted Subsidiary owning Oil and Gas Interests acquired by such Unrestricted Subsidiary in the East Texas/North Louisiana Area, in each case, to the extent required pursuant to and in accordance with the terms and conditions of the BG Joint Development Agreement (each, a “Required ET/NL Assignment”);
(x) so long as each of the ▇▇▇▇▇▇▇▇▇ ▇▇ Conditions are satisfied, EXCO PA and EXCO WV may transfer, pursuant to a multi-successor merger pursuant to Section 10.01 et seq of the Texas Business Organizations Code, (a) an undivided 49.75% interest in the ▇▇▇▇▇▇▇▇▇ ▇▇ Oil and Gas Assets to the Marcellus Holding Companies, (b) an undivided 0.5% interest in the ▇▇▇▇▇▇▇▇▇ ▇▇ Oil and Gas Assets to the ▇▇▇▇▇▇▇▇▇ ▇▇ Operator, and (c) 100% interest in the Marcellus Midstream Assets to the Marcellus Midstream Owner or one or more of its Subsidiaries;
(xi) so long as each of the ▇▇▇▇▇▇▇▇▇ ▇▇ Conditions are satisfied, the Borrower or one of more of its Restricted Subsidiaries may transfer to (a) the ▇▇▇▇▇▇▇▇▇ ▇▇ Partner (i) 100% of the Equity Interests of the Marcellus Holding Companies and (ii) 50% of the Equity Interests of the ▇▇▇▇▇▇▇▇▇ ▇▇ Operator and the Marcellus Midstream Owner, and (b) the Marcellus Midstream Owner 100% of the Equity Interests of Black Bear Gathering; and
(xii) following the consummation of the Marcellus Joint Venture and the satisfaction of each of the ▇▇▇▇▇▇▇▇▇ ▇▇ Conditions, EXCO PA, EXCO WV or any other Credit Party may sell, transfer or assign to (A) the Marcellus Holding Companies an undivided 49.75% interest and (B) the ▇▇▇▇▇▇▇▇▇ ▇▇ Operator an undivided 0.5% interest, in the case of each of clauses (A) and (B) above, in Oil and Gas Interests acquired thereafter by EXCO PA, EXCO WV or any other Credit Party in the Appalachian Area to the extent required pursuant to and in accordance with the terms and conditions of the ▇▇▇▇▇▇▇▇▇ ▇▇ Documents (such assignments, together with the transfers described in clauses (x) and (xi) above, the “Required Marcellus Assignments”).
(b) For purposes of determining compliance with clause (vii) of Section 7.03(a) with respect to any exchange of Oil and Gas Interests, the value of such exchange shall be the net reduction, if any, in Engineered Value realized or resulting from such exchange.
(c) The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, acquire engage to any material extent in any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course than businesses of the day-to-day business activities of type conducted by the Borrower and its Restricted Subsidiaries and not in violation on the date of the terms and conditions execution of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (the Transactions and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect businesses reasonably related thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 1 contract
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter Enter into any transaction of merger or merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, Dispose of all or be a party to any acquisition of, any Personsubstantially all of its property or business, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Sectionthat:
(a) any Subsidiary Guarantor of the Borrower (other than either Borrower) may be merged or consolidated with or into the Holdings or either Borrower or with or into any other Wholly-Owned Subsidiary Guarantor; Guarantor (provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Holdings, either Borrower or the Wholly-Owned Subsidiary Guarantor, as the wholly owned Subsidiary Guarantor case may be, shall be the continuing or surviving corporation);
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose Dispose of any or all of its assets (i) to Holdings or either Borrower or any Wholly-Owned Subsidiary Guarantor (upon voluntary liquidation or otherwise) or (ii) pursuant to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;a Disposition permitted by Section 7.5; and
(c) in the capital stock case of any Subsidiary Holdings or either Borrower, a merger, consolidation or Disposition of the Borrower may be sold, transferred all or otherwise disposed substantially all of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments its property (other than to a Financing Subsidiaryany such merger, consolidation or Disposition that would cause an Event of Default under Section 8(k)) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to in which Holdings or such saleBorrower, transfer or other disposition (and any concurrent acquisitions as the case may be, shall be the surviving corporation and, in the case of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base either Borrower, in which such surviving corporation and the other Borrower delivers to the Administrative Agent shall each be a certificate of a Financial Officer to such effect and Wholly-Owned Subsidiary Guarantor or (ii) in which the successor entity shall expressly assume all the obligations of Holdings or such Borrower hereunder and, in the case of a successor entity to either Borrower, such successor entity and the other Borrower shall each be a Wholly-Owned Subsidiary Guarantor; provided that after such merger, consolidation or Disposition, (x) Holdings or such successor entity of Holdings, as applicable, shall be in pro forma compliance with the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or covenants contained in Section 7.1 and (y) the Borrowing Base immediately after giving effect to secured senior debt rating of Holdings and the Borrowers (or the successor entities) from S&P and ▇▇▇▇▇'▇ shall not be lower than that before such release is merger, consolidation or Disposition; provided, further, at least 110% of the Covered Debt Amount;
(f) the any time either Borrower may merge with and into or consolidate with any the other Person Borrower. Any Investment expressly permitted by Section 7.7 may be structured as a merger, consolidation or amalgamation so long as (i) it complies with the Borrower is the continuing or surviving entity in such transaction provisions of Section 6.11 and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year7.7.
Appears in 1 contract
Fundamental Changes. The Borrower will not, nor and will it not permit any of the Subsidiary Guarantors to, enter (i) whether pursuant to a Delaware LLC Division, Delaware LP Division or otherwise, merge into or consolidate with any transaction of merger or consolidation or amalgamationother Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors toother Person to merge into or consolidate with it, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, (ii) sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, ) all or substantially all/any substantial part of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), but excluding (xiii) assets whether pursuant to a Delaware LLC Division, Delaware LP Division or otherwise, liquidate or dissolve, (other than Investmentsiv) sold divide into two or disposed of in more Persons, including becoming a Delaware Divided LLC or Delaware Divided LP (whether or not the ordinary course of business original Person survives such division) or (including v) create, or reorganize into, one or more series pursuant to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) belowa Delaware LLC Division or Delaware LP Division, Investments. Notwithstanding the foregoing provisions of this Sectionor except that, so long as no Default exists or would result therefrom:
(a) any Subsidiary Guarantor of the Borrower Person may be merged merge or consolidated consolidate with or into (i) the Borrower or any other Subsidiary Guarantor; the Trust, provided that if any such transaction the Borrower or the Trust, as applicable, shall be between a the continuing or surviving Person and there is no Change in Control, or (ii) any one or more other Subsidiaries, including newly formed Subsidiaries, provided that when any Subsidiary Guarantor and is merging or consolidating with or into another Subsidiary that is not a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationPerson;
(b) any Subsidiary Guarantor may merge, dissolve or liquidate, or sell, transfer, lease or otherwise dispose of the any, all or substantially all of its assets, and Borrower may sell, lease, transfer or otherwise dispose of any or all of its direct and indirect Equity Interests in any Subsidiary, provided that if such Subsidiary owns a Property that had been included as an Unencumbered Property, Borrower shall have complied with the requirements of Section 2.21(b) for removal of such Unencumbered Property;
(c) Borrower or Trust may enter into a merger in which such entity is the survivor, and there is no Change in Control and Borrower has complied with Section 6.09, to the extent applicable;
(d) Any Loan Party may sell, transfer, lease or otherwise dispose of any, all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower any other Loan Party (or to any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to Person that becomes concurrently with such sale, transfer transfer, lease or other disposition a Loan Party pursuant to Section 5.11); provided, any Loan Party that is a Wholly-Owned Subsidiary shall only be permitted to sell, transfer, lease or dispose of its assets to another Wholly-Owned Subsidiary pursuant to this clause (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;d); and
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Any Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release that is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower Loan Party may merge into or consolidate with any other Person, or permit any other Person so long as to merge into or consolidate with it, or liquidate or dissolve, pursuant to a Delaware LLC Division or Delaware LP Division and may consummate any transaction described in clauses (iiv) the Borrower is the continuing or surviving entity in such transaction and (iiv) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.above.
Appears in 1 contract
Sources: Credit Agreement (ARES INDUSTRIAL REAL ESTATE INCOME TRUST Inc.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or merger, division, consolidation or amalgamation, or liquidate or provisionally liquidate, wind up or dissolve itself (or suffer any liquidation, provisional liquidation or dissolution). The Borrower will not, nor will it permit any of its Subsidiaries to reorganize under the Subsidiary Guarantors laws of a jurisdiction other than any jurisdiction in the United States. The Borrower will not, nor will it permit any of its Subsidiaries (other than Financing Subsidiaries) to,to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including, without limitation, Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (other than the Financing Subsidiaries) (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries (other than the Financing Subsidiaries)) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments), in each case, other than sales or dispositions to any Financing Subsidiary, any CFC, any Transparent Subsidiary, the Excluded Subsidiary or any Restricted Investment. The Borrower will not, nor will it permit any of its Subsidiaries to, change its name, jurisdiction of formation, chief executive office and/or principal place of business without giving the Administrative Agent a minimum of thirty (30) days’ (or such lesser period as the Administrative Agent may reasonably agree) written notice thereof. The Borrower will not, nor will it permit any of its Subsidiaries to, (x) file a certificate of division; adopt a plan of division or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to applicable law with respect to any corporation, limited liability company, partnership or other entity). or (y) create or reorganize into one or more series under Section 18-215 or 18-218 of the Delaware Limited Liability Company Act (or any analogous action pursuant to applicable law with respect to any corporation, limited liability company or other entity). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be (i) between a Subsidiary or a wholly owned Subsidiary Guarantor and the Borrower, the Borrower shall be the continuing or surviving entity and (ii) between a Subsidiary and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary, a Restricted Investment or the Excluded Subsidiary) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing BaseBase and, on the date of; provided that, with respect to any such sale, transfer or other disposition of Portfolio Investments to any CFC or any Transparent Subsidiary, such sale, transfer or other disposition shall only be permitted if (i) in the Borrower’s good faith business judgment, such sale, transfer or other disposition is anticipated to maximize tax efficiencies for the Obligors and their Subsidiaries (considered in the aggregate) and (ii) no Default exists at the time of making such sale, transfer or disposition, the Borrower delivers to the Administrative Agent and each Lender a Borrowing Base Certificate as at such date demonstrating compliance with (or a certification that the Borrower is in compliance with) the foregoing after giving effect to(or immediately after making such sale, transfer or disposition);
(e) so long as no Default exists at the time of making such sale, transfer or disposition (or immediately after making such sale, transfer or disposition), the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other thanbut may not sell, transfer or dispose of ownership interests in Financing Subsidiaries), Restricted Investments or the Excluded Subsidiary) or Cash and Cash Equivalents to a Financing Subsidiary or a Restricted Investment so long as (i) both immediately prior to and immediately after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) (i) the Covered Debt Amount does not exceed the Borrowing Base and no Default exists, and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and effect, (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110115% of the Covered Debt Amount, (iii) the sum of (x) all sales, transfers or other dispositions under this clause (e) that occur after the Revolver Termination Date and do not result in Net Asset Sale Proceeds for fair value that are applied in accordance with Section 2.08(d)(i) and (y) all Investments under Section 6.04(e) that occur after the Revolver Termination Date, shall not exceed 20% of the Commitments onaggregate principal amount of the Loans outstanding immediately after the Revolver Termination Date, and (iv) the Asset Coverage Ratio is not less than 1.67 to 1 (and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer with respect to each of clauses (i) through (iv) of this clause (e)); provided that, from the Amendment No. 3 Effective Date until the date set forth in the final proviso of this clause (e), no Obligor shall sell, transfer or otherwise dispose of Portfolio Investments or Cash and Cash Equivalents to a Financing Subsidiary or a Restricted Investment other than sales, transfers and other dispositions otherwise permitted under this Section 6.03(e) to the Monroe Joint Venture in an aggregate amount not to exceed $5,000,000; provided, further, that the aggregate amount of such sales, transfers and other dispositions to the Monroe Joint Venture shall be deemed to be equal to the aggregate amount of all sales, transfers and other dispositions made to the Monroe Joint Venture after the Amendment No. 3 Effective Date less the amount of Cash received after the Amendment No. 3 Effective Date by the Borrower from the Monroe Joint Venture on account of such sales, transfers and other dispositions; provided, further, that the foregoing provisos will only remain effective until the date on which the Borrower delivers to the Administrative Agent a Covid Relief Financial Officer’s Certificate certifying that each of the Covid Relief Borrowing Base Condition and the condition that the Asset Coverage Ratio shall be greater than 1.70 to 1 has been satisfied for each date in the two (2) consecutive month period ending on such date (or, if such date is not the end of the month, the date of the month then most recently ended);
(f) other than during the Financing Subsidiary Limitation Period, an Obligor may transfer assets to a Financing Subsidiary for the sole purpose of facilitating the transfer of assets from one Financing Subsidiary (or a Subsidiary that was a Financing Subsidiary immediately prior to such disposition) to another Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”); provided that (i) no Default exists or is continuing at such time, and the Covered Debt Amount shall not exceed the Borrowing Base at such time and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect, and (ii) the Transferred Assets were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day that such assets are transferred by such Obligor to the transferee Financing Subsidiary;
(g) the Borrower may merge or consolidate with any other Person Person, so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or o▇▇▇▇ be continuing; and;
(gh) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year; and
(i) any Subsidiary of the Borrower may be liquidated or dissolved; provided that (i) in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower and (ii) the Borrower determines in good faith that such liquidation is in the best interests of the Borrower and is not materially disadvantageous to the Lenders.;
(j) any Financing Subsidiary may sell or dispose of Portfolio Investments in the ordinary course of business of such Financing Subsidiary; and
(k) the Borrower may transfer Cash (other than Portfolio Investments) to the Excluded Subsidiary in an aggregate amount not to exceed $10,000 after the Amendment No. 3
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (MONROE CAPITAL Corp)
Fundamental Changes. The No Borrower will notshall, nor will shall it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, directly or indirectly, (i) consummate any Acquisition or (ii) enter into any transaction of merger or merger, consolidation or amalgamation, or liquidate, wind wind-up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business ) or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, assign, lease, transfer or otherwise dispose ofof (or agree to do any of the foregoing at any future time) all or substantially all of its property, in one transaction business or a series of assets; provided, however, that so long as prior to or simultaneously with such transactions, any part of such Borrower has complied with, and has caused its assetsSubsidiaries to comply with, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this SectionSection 7.10:
(a) any Subsidiary Guarantor of the Borrower Company may be merged or consolidated with or into the Borrower Company so long as the Company is the surviving corporation or with or into any one or more Wholly-Owned Subsidiaries of the Company (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that (i) the Wholly-Owned Subsidiary Guarantor; provided that if any such transaction or Subsidiaries shall be the surviving corporation and (ii) in the case of any merger or consolidation between Subsidiaries at least one of which is a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor surviving Person shall be or become a party to the continuing or surviving corporationSubsidiary Guarantee Agreement;
(b) any Subsidiary Guarantor of the a Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the a Borrower or any wholly owned other Wholly-Owned Subsidiary Guarantor of the Borrowera Borrower (other than an Unrestricted Subsidiary);
(c) the capital stock of any Subsidiary of the a Borrower may be soldvoluntarily liquidate, transferred wind-up or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrowerdissolve;
(d) the Obligors any transaction permitted pursuant to Section 8.6(e) may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Basebe consummated;
(e) agreements to conduct the Obligors transactions referred to in clauses (a) through (d) above may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amountbe entered into;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 1 contract
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Portfolio Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (TPG Specialty Lending, Inc.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter (a) Merge or consolidate with or into any transaction of merger or consolidation or amalgamation, Person or liquidate, wind wind-up or dissolve itself (itself, or permit or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any EXCEPT, that so long as no Default or Event of the Subsidiary Guarantors to, acquire any business Default exists or property fromwould result therefrom:
(i) Subsidiaries of Borrowers may merge or consolidate with or into, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, selltransfer, lease, transfer lease or otherwise dispose (whether in one transaction or in a series of transactions) of all or substantially all of any of their Properties (whether now owned or hereafter acquired) to, or in favor of, Borrowers or another Subsidiary of Borrowers;
(ii) Subsidiaries of Borrowers may be liquidated, wound up or dissolved following any conveyance, transfer, lease or other disposition (whether in one transaction or a series of transactions) of all or substantially all of their Properties permitted under SECTION 7.03(a)(i);
(iii) Subsidiaries of Borrowers may engage in reverse mergers or internal reorganizations whereby a Subsidiary or Subsidiaries merge into or with one or more Subsidiaries of the Borrowers or any Guarantor or any combination thereof; and
(iv) Borrowers or any Subsidiary of Borrowers may merge, any part or consolidate with another Person; PROVIDED that each of the following conditions are satisfied: (1) at the inception of the transaction, Borrowers or such Subsidiary are intended to be and will be the surviving Person after the consummation of the contemplated transaction; (2) To The Best Knowledge of Borrowers, prior to the consummation of the transaction, the transaction will not cause Borrowers to be in breach of the representations and warranties of this Agreement and the other Loan Documents; (3) the transaction will not cause Borrowers to be in breach of the covenants of this Agreement and the other Loan Documents, including financial covenants after the consummation thereof; and (4) Borrowers provide Administrative Agent with a pro-forma Compliance Certificate that demonstrates that after the consummation of the proposed transaction the Borrowers will be in compliance with the financial covenants of this Agreement.
(v) Borrowers may (x) consummate the Casden Acquisition and (y) acquire additional equity interests in the managing members of the Real Estate Companies after the Initial Closing Date as contemplated by the Casden Merger Agreement. Notwithstanding the foregoing, no Subsidiary shall merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets, Properties (whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold to or disposed in favor of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any another Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between would result in a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;violation of any covenant in this Agreement.
(b) Amend its Organization Documents in any Subsidiary Guarantor respect which is, in the opinion of the Borrower may sellRequisite Lenders, leasematerially adverse to the interests of the Lenders. Without limiting the foregoing, transfer under no circumstances (i) shall the Organization Documents of the Borrowers be changed so as to eliminate the transferability of Partnership Units of AIMCO for common Stock in the REIT on a one-to-one basis (subject to adjustment as provided in the Organization Documents of AIMCO) or otherwise dispose (ii) shall the Organization Documents of a Management Entity be changed so as to eliminate or reduce any obligation to pay preferred Stock dividends, without the prior consent of the Requisite Lenders; PROVIDED, HOWEVER, that consent shall not be required for the foregoing solely to the extent any such changes or amendments are required in connection with the consolidation or merger of any Management Entity into a Wholly-Owned Subsidiary of the Borrowers and such new or all of its assets (upon voluntary liquidation or otherwise) surviving Person provides a Guaranty to the Borrower or any wholly owned Subsidiary Guarantor Lenders in accordance with the requirements of the Borrower;SECTION 6.16(c).
(c) Issue any preferred Stock or preferred Partnership Units; PROVIDED, HOWEVER, the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower REIT or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors its Subsidiaries may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary issue preferred Stock and/or preferred Partnership Units so long as (i) after giving effect to if such salepreferred Stock or preferred Partnership Units has any mandatory redemption feature or has a redemption feature which is exercisable at the option of the holder thereof (other than a change of control put feature), transfer then the face amount of such preferred Stock or other disposition (and any concurrent acquisitions preferred Partnership Units shall be deemed Unsecured Debt for all purposes of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect this Agreement; and (ii) any distributions with respect thereto shall comply with the provisions of this Agreement (including, without limitation, SECTION 7.07).
(d) Change the organizational structure of Borrowers or any of their respective Subsidiaries from that which is reflected in the Organizational Chart which is, in the reasonable opinion of the Requisite Lenders, materially adverse to any Management Entity, without the prior written consent of the Requisite Lenders, EXCEPT for mergers and changes in the equity structure of Subsidiaries in accordance with this Section 7.03 and the formation or acquisition of Subsidiaries in accordance with this SECTION 7.03; PROVIDED, HOWEVER, that consent shall not be required for the foregoing solely to the extent any such changes are required in connection with the consolidation or merger of any Management Entity into a Wholly-Owned Subsidiary of the Borrowers and such new or surviving Person provides a Guaranty to the Lenders in accordance with the requirements of SECTION 6.16(c).
(e) Terminate the employment of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and/or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ as Chief Executive Officer and President of the REIT, respectively, or remove either or both of them from such positions without the prior written consent of Requisite Lenders (xother than in the event of death or permanent disability).
(f) Other than the amount Casden Acquisition and the acquisition of additional equity interests in the managing members of the Real Estate Companies after the Initial Closing Date as contemplated by which the Borrowing Base exceeds Casden Merger Agreement, acquire by purchase or otherwise all or substantially all of the Covered Debt Amount business or Property of, or Stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, where such business, Property, Stock or other evidence of beneficial ownership and/or division or line of business to be acquired has a fair market value in excess of 20% of the Gross Asset Value in effect immediately prior to such release is not diminished as a result acquisition, without the prior written consent of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearRequisite Lenders.
Appears in 1 contract
Sources: Credit Agreement (Apartment Investment & Management Co)
Fundamental Changes. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part all or substantially all of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash and dispositions of investments in connection with exits and work-outs (including assets abandoned for no consideration if the Company determines such assets have no value) in the normal course of the day-to-day business activities of the Borrower Company and its Subsidiaries) and (y) subject Portfolio Investments (to the provisions extent not otherwise included in clause (x) of clauses (d) and (e) below, Investmentsthis Section 10.2). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into (i) the Borrower Company or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationcorporation or (ii) any other Person so long as such Subsidiary Guarantor is the continuing or surviving entity in such transaction and at the time thereof and after giving effect thereto, no Default or Event of Default shall have occurred or be continuing;
(b) any Subsidiary Guarantor of the Borrower may convey, sell, lease, transfer or otherwise dispose of any all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower Company or any wholly owned Subsidiary Guarantor of the BorrowerGuarantor;
(c) the capital stock of any Subsidiary of the Borrower Guarantor may be soldconvey, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) all or substantially all of its assets so long as after giving effect to such conveyance, sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sellIndebtedness), transfer no Default or otherwise dispose Event of Investments to Default hereunder or as defined under a Financing Subsidiary so long as (i) after giving effect to such sale, transfer Corporate Facility or other disposition (and any concurrent acquisitions of Investments an SPV Facility shall have occurred or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base be continuing and the Borrower Company delivers to the Administrative Agent holders of the Notes a certificate of a Senior Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amounteffect;
(fd) the Borrower Company may merge or consolidate with any other Person so long as (i) the Borrower Company is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default or Event of Default shall have occurred or be continuing; and
(ge) the Borrower and each of the Subsidiary Guarantors Company may merge or consolidate with any other Person, or convey, sell, lease, transfer, or otherwise dispose of all or substantially all of its assets, so long as:
(i) the successor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance, transfer or lease all or substantially all of the assets of the Company shall be a solvent corporation or limited partnership or other entity organized and existing under the laws of the United States or any state thereof (including the District of Columbia), and, if the Company is not such corporation or limited partnership or other entity, (A) such corporation or limited partnership or other entity shall have executed and delivered to each holder of any Notes its assumption of the due and punctual performance and observance of each covenant and condition of this Agreement and the Notes applicable to the Company, as appropriate, and (B) such corporation or limited partnership or other entity shall have caused to be delivered to each holder of any Notes an opinion of nationally recognized independent counsel, or other independent counsel reasonably satisfactory to the Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof; and
(ii) each Subsidiary Guarantor under any Subsidiary Guaranty that is outstanding at the time such transaction or each transaction in such a series of transactions occurs reaffirms its obligations under such Subsidiary Guaranty in writing at such time pursuant to documentation that is reasonably acceptable to the Required Holders; and
(iii) immediately before and immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(f) the Company and any Subsidiary Guarantor may convey, sell, transfer or otherwise dispose of equipment Portfolio Investments to another wholly-owned Subsidiary or other property or assets that do not consist of Investments a Financing Subsidiary so long as the aggregate amount of all after giving effect to such salesconveyance, leasessale, transfer or other disposition (and dispositions does not exceed $5,000,000 any concurrent acquisitions of Portfolio Investments) no Default or Event of Default shall have occurred and be continuing;
(g) the Company may effect the BDC Conversion; and
(h) any other transactions permitted under the analogous covenant set forth in any fiscal yearCorporate Facility. No such conveyance, transfer or lease of substantially all of the assets of the Company or any Subsidiary Guarantor shall have the effect of releasing the Company or such Subsidiary Guarantor, as the case may be, or any successor corporation or limited liability company or other entity that shall theretofore have become such in the manner prescribed in this Section 10.2, from its liability under (x) this Agreement or the Notes (in the case of the Company) or (y) the Subsidiary Guaranty (in the case of any Subsidiary Guarantor), unless, in the case of the conveyance, transfer or lease of substantially all of the assets of a Subsidiary Guarantor, such Subsidiary Guarantor is released from its Subsidiary Guaranty in accordance with Section 9.7(b) in connection with or immediately following such conveyance, transfer or lease.
Appears in 1 contract
Sources: Master Note Purchase Agreement (Silver Point Specialty Lending Fund)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve or divide itself (or suffer any liquidation or dissolutiondissolution or division). The Borrower will not reorganize under the laws of a jurisdiction other than any jurisdiction in the United States. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock Capital Stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (w) any transaction permitted under Section 6.05 or 6.12, (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash Cash and Cash Equivalents in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or (subject to the conditions set forth in clause (f) below) into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower Obligor may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock Capital Stock of any Subsidiary of the Borrower may be sold, transferred (including a deemed transfer resulting from a division or plan of division) or otherwise disposed of (including by way of consolidation or merger)
(i) to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerBorrower or (ii) so long as such transaction results in an Obligor receiving the proceeds of such disposition, to any other Person, provided, that in the case of this clause (ii), if such Subsidiary is a Subsidiary Guarantor or holds any Portfolio Investments, the Borrower would not have been prohibited from disposing of any such Portfolio Investments to such other Person under any other term of this Agreement;
(d) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose Dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition Disposition (and any concurrent acquisitions of Investments by the Obligors or payment of outstanding LoansIndebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose Dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition Disposition (and any concurrent acquisitions of Investments by the Obligors or payment of outstanding LoansIndebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release Disposition is not diminished as a result of such release Disposition or (y) the Borrowing Base immediately after giving effect to such release Disposition is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with (or acquire all or substantially all of the assets of) any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect theretothereto (and any concurrent acquisitions of Investments by the Borrower or payment of outstanding Indebtedness that is included in the Covered Debt Amount at such time), no Default shall have occurred or be continuing; andprovided that, in no event shall the Borrower enter in any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States;
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer transfers and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year; and
(h) the Obligors may dissolve or liquidate (i) any Immaterial Subsidiary or (ii) any other Subsidiary so long as (x) in connection with such dissolution or liquidation, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to an Obligor and (y) such dissolution or liquidation is not materially adverse to the Lenders and the Borrower determines in good faith that such dissolution or liquidation is in the best interests of the Borrower.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (North Haven Private Income Fund a LLC)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Portfolio Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (TPG Specialty Lending, Inc.)
Fundamental Changes. The (a) Subject to subsections (d) and (e) below, the Borrower will shall not, nor will shall it permit any of the Subsidiary Guarantors its Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The , unless it is a Permitted Acquisition.
(b) Subject to subsections (d) and (e) below, the Borrower will shall not, nor will shall it permit any of the Subsidiary Guarantors its Subsidiaries to, acquire make any business or property from, or capital stock of, or be a party to any acquisition of, any PersonAcquisition, except for purchases or acquisitions of Investments and other assets (i) Assumed Reinsurance in the normal ordinary course of the day-to-day business activities of and (ii) Permitted Acquisitions.
(c) Subject to subsections (d) and (e) below, the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will shall not, nor will shall it permit any of the Subsidiary Guarantors its Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any all or a substantial part of its assetsbusiness or Property, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses .
(d) and (e) below, Investments. Notwithstanding the foregoing provisions of this SectionSection 6.03:
(ai) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into into: (A) the Borrower if the Borrower shall be the continuing or surviving corporation or (B) any other Subsidiary Guarantorsuch Subsidiary; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary GuarantorWholly Owned Subsidiary, the wholly owned Wholly Owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(bii) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) ), and the Equity Interests of any Subsidiary may be sold or otherwise transferred, to the Borrower or any wholly owned a Wholly Owned Subsidiary Guarantor of the Borrower;; and
(ciii) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with or acquire any other Person if, in the case of a merger or consolidation, the surviving corporation is a Wholly Owned Subsidiary of the Borrower.
(e) Further notwithstanding the foregoing provisions of this Section 6.03, United Fire, Holding and UFC MergeCo, Inc. (an Iowa corporation and a wholly owned subsidiary of Holding) may enter into the Reorganization Transaction, so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose Permitted Reorganization Conditions is satisfied (such a Reorganization Transaction consummated in accordance with the provisions of equipment or other property or assets that do not consist of Investments so long as this Section 6.03(e) being the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year“Permitted Reorganization”).
Appears in 1 contract
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve or divide itself (or suffer any liquidation liquidation, dissolution or dissolutiondivision). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock Capital Stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold any transaction permitted under Section 6.01(f), 6.05 or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments6.12. Notwithstanding the foregoing provisions of this SectionSection 6.03:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly wholly-owned Subsidiary Guarantor, the wholly wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock Capital Stock of any Subsidiary of the Borrower any Obligor may be sold, transferred (including a deemed transfer resulting from a division or plan of division) or otherwise disposed of (including by way of consolidation or merger)
(i) to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerBorrower or (ii) so long as such transaction results in an Obligor receiving the proceeds of such disposition, to any other Person; provided that in the case of this clause (ii), (x) if such Person is an Affiliate of the Borrower that is not an Obligor, such transaction shall be at prices and on terms and conditions, taken as a whole, not materially less favorable to such Obligor other than in good faith is believed to be obtained on an arm’s-length basis from unrelated third parties, and (y) if such Subsidiary is a Subsidiary Guarantor or holds any Portfolio Investments, the Borrower would not have been prohibited from disposing of all such Portfolio Investments and all other assets of such Subsidiary in one transaction to such other Person under any other term of this Agreement;
(d) the Obligors may sell, transfer sell or otherwise dispose of Investments assets (other than to a Financing Subsidiary, an Excluded Asset or any other Subsidiary that is not a Subsidiary Guarantor) in the ordinary course of business (including to make expenditures of cash and Cash Equivalents in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and the use of cash and Cash Equivalents in the ordinary course of business); 137 Revolving Credit Agreement
(e) the Obligors may (i) sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise Dispose of assets to a Financing Subsidiary, an Excluded Asset or any other Subsidiary that is not a Subsidiary Guarantor or (ii) repurchase from any Financing Subsidiary, Excluded Asset or any other Subsidiary that is not a Subsidiary Guarantor any assets transferred or contributed, directly or indirectly, to such Financing Subsidiary or Excluded Asset or any other Subsidiary that is not a Subsidiary Guarantor, so long as as, in each case of clause (i) or clause (ii), (x) immediately after giving effect to such sale, transfer or other disposition or such repurchase (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansConcurrent Transaction) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (iiy) either (x1) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release sale, transfer or other disposition or such repurchase is not diminished as a result of such release sale, transfer or other disposition or (y2) the Adjusted Gross Borrowing Base immediately after giving effect to such release sale, transfer or other disposition or such repurchase is at least 110% of the Covered Debt Amount; provided that, for the purposes of this clause (y) and in connection with the organization of any CLO Security, the Borrowing Base, Adjusted Gross Borrowing Base and the Covered Debt Amount, as applicable, shall be tested as of the pricing date for such CLO Security;
(f) the Borrower may merge or consolidate with with, or acquire all or substantially all of the assets of, any other Person (including any Subsidiary Guarantor) so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) (x) with respect to any Specified Purchase, as of the date of entering into the applicable agreement governing such merger, consolidation or acquisition or (y) with respect to any other merger, consolidation or acquisition at the time thereof and thereof, and, in each case, after giving pro forma effect theretothereto and any Concurrent Transaction, no Event of Default shall have occurred or be continuing; andprovided that, in no event shall the Borrower enter in any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States;
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year;
(h) the Obligors may transfer assets to an Excluded Asset or a Financing Subsidiary (x) for the sole purpose of facilitating the transfer of assets from one Excluded Asset or Financing Subsidiary (or a Subsidiary that was an Excluded Asset or a Financing Subsidiary immediately prior to such disposition) to another Excluded Asset or Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”); provided that (i) no Event of Default exists and is continuing at such time, (ii) immediately after giving effect to such transfer and any Concurrent Transaction, the Covered Debt Amount shall not exceed the Borrowing Base at such time, (iii) the Transferred Assets were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day that such assets are transferred by such Obligor to the transferee Excluded Asset or Financing Subsidiary and (iv) following such transfer such Obligor has no liability, actual or contingent, with respect to the transferred assets other than Standard Securitization Undertakings, and (y) in connection with a Back-to-Back Transaction; 138 Revolving Credit Agreement
(i) the Obligors may sell, transfer or otherwise dispose of direct ownership interests in any Excluded Asset to any Subsidiary that is not an Obligor, if immediately after giving effect to such sale, transfer or other disposition and any Concurrent Transactions, no more than 25% of the Value of all Obligors’ direct ownership interests in all Excluded Assets (calculated as of the date of the most recently delivered financial statements on or prior to the date of such sale, transfer or other disposition) are subject to Excluded Asset Liens or have been sold, transferred or otherwise disposed of to a Subsidiary that is not an Obligor pursuant to this clause (k); provided that, notwithstanding that a transfer may violate such 25% limitation, such transfer shall nevertheless be permitted if it is required by law, rule, regulation or interpretive position of the SEC; and
(j) the Borrower or the other Obligors may dissolve or liquidate (i) any Immaterial Subsidiary or (ii) any other Subsidiary so long as, with respect to this clause (ii), (A) in connection with such dissolution or liquidation, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to an Obligor (or, if such Subsidiary is an Excluded Asset, to another Excluded Asset) and (B) such dissolution or liquidation is not materially adverse to the Lenders and the Borrower determines in good faith that such dissolution or liquidation is in its best interests; provided that in no event shall the Borrower enter into any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (AB Private Credit Investors Corp)
Fundamental Changes. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, Person except for purchases or acquisitions of Investments inventory and other assets property to be sold or used in the normal ordinary course of the day-to-day business activities of the Borrower business, Investments permitted under Section 7.05 and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentCapital Expenditures. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsbusiness or property, whether now owned or hereafter acquiredacquired (including, without limitation, receivables and leasehold interests, but excluding (x) assets obsolete or worn out property, tools or equipment no longer used or useful in its business and (y) any inventory or other than Investments) property sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day and on ordinary business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investmentsterms). Notwithstanding the foregoing provisions of this SectionSection 7.04:
(a) any Restricted Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary GuarantorRestricted Subsidiary; provided that if any such transaction shall be between a Restricted Subsidiary Guarantor and a wholly owned Wholly Owned Restricted Subsidiary Guarantorof the Company, the wholly owned a Wholly Owned Restricted Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Restricted Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to the Borrower Company or any wholly owned Wholly Owned Restricted Subsidiary Guarantor of the BorrowerCompany;
(c) the capital stock of any Restricted Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower Company or any wholly owned Wholly Owned Restricted Subsidiary Guarantor of the BorrowerCompany;
(d) the Obligors Company or any of its Restricted Subsidiaries may sellsell assets (including, transfer or otherwise dispose without limitation, capital stock issued by any of Investments their respective Subsidiaries) for fair market value provided that (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loansi) the Covered Debt Amount does aggregate amount of Disposition Investments and other non-cash proceeds (valued at the fair market value thereof determined in good faith by the Board of Directors of the Company) received by the seller in the sale of any asset shall not exceed 25% (or, in the Borrowing Basecase of real property and improvements located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ 75%) of the total sales price for such asset (including (A) the amount of liabilities, if any, assumed as a portion of the sales price and (B) the amount of any repayment by the seller of the principal of Indebtedness to the extent that (X) such Indebtedness is secured by a Lien on such asset and (Y) the seller is required by the transferee of (or holder of a Lien on) such assets to repay such principal as a condition to the purchase of such asset) and (ii) no more than 10% of EBITDA for any fiscal year of the Company shall be attributable to all such assets so sold in the following fiscal year of the Company;
(e) the Obligors Company or any Wholly Owned Restricted Subsidiary of the Company may sellacquire any business, transfer and the related assets, of any other Person including of an Unrestricted Subsidiary (whether by way of purchase of assets or otherwise dispose of Investments to a Financing Subsidiary stock, by merger or consolidation or otherwise), so long as as:
(i) such Acquisition (if by purchase of assets, merger or consolidation) shall be effected in such manner so that the acquired business, and the related assets, are owned either by the Company or a Wholly Owned Restricted Subsidiary of the Company and, if effected by merger or consolidation involving the Company, the Company shall be the continuing or surviving entity and, if effected by merger or consolidation involving a Wholly Owned Restricted Subsidiary of the Company, such Wholly Owned Restricted Subsidiary shall be the continuing or surviving entity;
(ii) such Acquisition (if by purchase of stock) shall be effected in such manner so that the acquired entity becomes a Wholly Owned Restricted Subsidiary of the Company;
(iii) after giving effect to such saleAcquisition the Company shall be in compliance with Section 7.09 (the determination of such compliance to be calculated on a pro forma basis, transfer or other disposition (as at the end of and for the period of four fiscal quarters most recently ended prior to the date of such Acquisition for which financial statements of the Company and its Restricted Subsidiaries are available, under the assumption that such Acquisition shall have occurred, and any concurrent acquisitions Indebtedness in connection therewith shall have been incurred, at the beginning of Investments or payment the applicable period, and under the assumption that interest for such period had been equal to the actual weighted average interest rate in effect for the Loans hereunder on the date of outstanding Loanssuch Acquisition) and, in the Covered Debt Amount does not event that the aggregate amount of expenditures in respect of such Acquisition shall exceed $100,000,000, the Borrowing Base and the Borrower delivers Company shall have delivered to the Administrative Agent a certificate of a Financial Officer showing calculations in reasonable detail to such effect and demonstrate compliance with this subclause (iiiii); and
(iv) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof Acquisition and after giving effect thereto, no Default shall have occurred or and be continuing; and
(gf) the Borrower Company and each of the Subsidiary Guarantors its Restricted Subsidiaries may sell, lease, transfer or otherwise dispose of equipment any one or more outdoor properties in exchange for one or more other property or assets that do not consist of Investments outdoor properties (including logo signage businesses), so long as the percentage of the aggregate amount EBITDA attributable to the properties so disposed of all such sales, leases, transfer and dispositions during any single fiscal year does not exceed $5,000,000 10% of the aggregate EBITDA of the Company and its Restricted Subsidiaries for the most recently-ended fiscal year (such EBITDA to be determined for these purposes without giving effect to the last paragraph of the definition of such term in any fiscal yearSection 1.01).
Appears in 1 contract
Fundamental Changes. The Borrower will notMerge into or consolidate with any other Person, nor will it or permit any of the Subsidiary Guarantors to, enter other Person to merge into any transaction of merger or consolidation or amalgamationconsolidate with it, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, any part ) all or substantially all of its assetsassets (in each case, whether now owned or hereafter acquired), but excluding or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(ai) any Subsidiary Guarantor of the any Borrower may be merged or consolidated with or merge into such Borrower in a transaction in which such Borrower is the Borrower surviving entity, (ii) any Subsidiary of Holdings may merge into Holdings or any other Subsidiary Guarantor; of Holdings (provided that (A) if Kmart Corp. is a party to such merger, such merger shall be with Holdings, Kmart or a direct Subsidiary of Kmart Corp. and Kmart Corp. shall be the continuing or surviving entity, (B) if any such transaction shall be between a Subsidiary Guarantor and is a wholly owned Subsidiary Guarantorparty to such merger (other than with a Borrower or Holdings), the wholly owned such Subsidiary Guarantor shall be the continuing or surviving corporation;
entity or the continuing or surviving entity shall become a Subsidiary Guarantor and (bC) if SRAC is a party to such merger, then Sears shall comply with the requirements of Section 6.01(d)), (iii) any Subsidiary Guarantor of Holdings other than the Borrower Borrowers may sell, leasetransfer, transfer lease or otherwise dispose of any or all of its assets to any Borrower, to Holdings or to a Subsidiary of Holdings (upon voluntary liquidation provided that if such sale or otherwise) to transfer includes Collateral and the transferee is not the Borrower or any wholly owned Holdings, the transferee shall be a Subsidiary Guarantor of the Borrower;
Guarantor), (civ) the capital stock of any Subsidiary of Holdings other than the Borrower may be sold, transferred Borrowers or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors Sears may sell, transfer transfer, lease or otherwise dispose of Investments its assets to a Person that is not a Subsidiary or merge with a Person that is not a Subsidiary, in each case, pursuant to a Permitted Disposition, (v) any Subsidiary of Holdings other than to a Financing Subsidiarythe Borrowers, Sears or any Material Subsidiary Guarantor (except, in the case of SRAC, as provided in Section 6.01(d)) so long as after giving effect to such sale, transfer may liquidate or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base dissolve if Holdings and the Borrower delivers Borrowers determine in good faith that such liquidation or dissolution is in the best interests of Holdings, the Borrowers, Sears, the other Material Subsidiary Guarantors and their Subsidiaries and is not disadvantageous in any material respect to Holdings, the Administrative Agent Borrowers, Sears, the other Material Subsidiary Guarantors or the Lenders; provided, that a certificate Material Subsidiary Guarantor may liquidate or dissolve into a Person that is a Subsidiary of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount Holdings immediately prior to such release liquidation or dissolution, if the continuing or surviving entity is or shall become a Subsidiary Guarantor in accordance with Section 6.01(i)(ii), (vi) Holdings or any Subsidiary of Holdings may merge with a Person that is not diminished as a result Subsidiary of such release or (y) the Borrowing Base Holdings immediately after giving effect prior to such release is at least 110% merger if, in the case of the Covered Debt Amount;
(f) the any merger involving Holdings, a Borrower may merge or consolidate with any other Person so long a Subsidiary Guarantor, Holdings, such Borrower or such Subsidiary Guarantor, as (i) the Borrower applicable, is the continuing or surviving entity or, in such transaction the case of any merger involving a Subsidiary Guarantor, the continuing or surviving entity shall become a Subsidiary Guarantor in accordance with Section 6.01(i)(ii) and (iivii) at the time thereof and after giving effect thereto, no Default shall have occurred any Credit Card Royalty Securitization Subsidiary may sell or be continuing; and
(g) the Borrower and each otherwise finance or Dispose of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as subject to the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearCredit Card Royalty Securitization.
Appears in 1 contract
Fundamental Changes. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors to, its Subsidiaries (other than Financing Subsidiaries and Immaterial Subsidiaries) to enter into any transaction of merger or merger, consolidation or amalgamation, amalgamation or to liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors to, its Subsidiaries (other than Financing Subsidiaries and Immaterial Subsidiaries) to acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower Company and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentAgreement. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries and Immaterial Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash and dispositions of investments in connection with exits and work-outs (including assets abandoned for no consideration if the Company determines such assets have no value) in the normal course of the day-to-day business activities of the Borrower Company and its Subsidiaries) and (y) subject to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this Section 10.3). SOLAR SENIOR CAPITAL LTD. NOTE PURCHASE AGREEMENT Notwithstanding the foregoing provisions of this SectionSection 10.3:
(a) any Subsidiary Guarantor of the Borrower Company may be merged or consolidated with or into the Borrower Company or any other Subsidiary Guarantor; provided that (i) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing, (ii) if any such transaction shall be between a Subsidiary Guarantor and a wholly wholly-owned Subsidiary Guarantor, the wholly wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between the Company and a Subsidiary Guarantor, the Company shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower Company may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower Company or any wholly wholly-owned Subsidiary Guarantor of the BorrowerCompany;
(c) the capital stock of any Subsidiary of the Borrower Company may be sold, transferred or otherwise disposed of to the Borrower Company or any wholly wholly-owned Subsidiary Guarantor of the BorrowerCompany;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) Subsidiary so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments Portfolio Investments) no Default shall have occurred or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Basebe continuing;
(e) the Obligors may sell, transfer Company or otherwise dispose of Investments to a Financing any Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; andcontinuing and provided that
(gi) if any such transaction shall be between the Company and another Person, either
(A) the Borrower Company shall be the continuing or surviving corporation or
(B) (1) no Change in Control shall have occurred, (2) the successor formed by such consolidation or the survivor of such merger, shall be a solvent corporation or limited liability company organized and each existing under the laws of the United States or any state thereof (including the District of Columbia), and (3)(x) such corporation or limited liability company shall have executed and delivered to each holder of any Notes its assumption of the due and punctual performance and observance of each covenant and condition of this Agreement and the Notes, (y) such corporation or limited liability company shall have caused to be delivered to each holder of any Notes an opinion of nationally recognized independent counsel, or other independent counsel reasonably satisfactory to the Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and (z) each Subsidiary Guarantors Guarantor under any Subsidiary Guarantee that is outstanding at the time such transaction or each transaction in such a series of transactions occurs reaffirms its obligations under such Subsidiary Guarantee in writing at such time pursuant to documentation that is reasonably acceptable to the Required Holders, SOLAR SENIOR CAPITAL LTD. NOTE PURCHASE AGREEMENT
(ii) if any such transaction shall be between a wholly-owned Subsidiary Guarantor and another Person (other than the Company), a wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation,
(iii) if any such transaction shall be between a Subsidiary Guarantor and another Person (other than the Company or a wholly-owned Subsidiary Guarantor), a Subsidiary Guarantor shall be the continuing or surviving corporation;
(f) the Company and its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 25,000,000 in any fiscal year; and
(g) the Company or the other Obligors may dissolve or liquidate (i) any Subsidiary that does not own, legally or beneficially, assets which in aggregate have a value of $1,000,000 or more at such time of dissolution or liquidation or (ii) any SBIC Subsidiary, provided that no portion of any Indebtedness or any other obligations (contingent or otherwise) of such SBIC Subsidiary (A) is, or would as a result of dissolution or liquidation hereunder become, recourse to or obligate the Company or any other Obligor (other than any SBIC Subsidiary) in any way, or (B) subjects, or would as a result of dissolution or liquidation hereunder subject, any property of the Company or any other Obligor (other than any SBIC Subsidiary) to the satisfaction of such Indebtedness.
Appears in 1 contract
Sources: Note Purchase Agreement (Solar Senior Capital Ltd.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, enter merge into or consolidate with any transaction of merger or consolidation or amalgamationother Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business other Person to merge into or property fromconsolidate with it, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, ) all or any substantial part of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), but excluding or liquidate or dissolve, except that (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) or any Subsidiary may enter into transactions permitted by Section 7.05 and (y) subject to if at the provisions of clauses (d) time thereof and (e) below, Investments. Notwithstanding the foregoing provisions of this Sectionimmediately after giving effect thereto no Default shall have occurred and be continuing:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into into:
(i) the Borrower if the Borrower shall be the continuing or surviving corporation, (ii) any other Wholly-Owned Subsidiary Guarantorof the Borrower that is not a Foreign Subsidiary or (iii) if such Subsidiary is a Foreign Subsidiary, any Wholly-Owned Subsidiary of the Borrower that is a Foreign Subsidiary; provided that if in any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantortransaction, the wholly owned Wholly-Owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any such Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets Property (upon voluntary liquidation or otherwise) to (i) the Borrower, (ii) any Wholly-Owned Subsidiary of the Borrower that is not a Foreign Subsidiary or (iii) if such Subsidiary is a Foreign Subsidiary, any wholly owned Wholly-Owned Subsidiary Guarantor of the BorrowerBorrower that is a Foreign Subsidiary;
(c) the capital stock of Borrower or any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) if, in the case of a merger or consolidation of the Borrower, the Borrower is the continuing surviving corporation and, in any other case, the surviving corporation is a Wholly-Owned Subsidiary of the Borrower that is not a Foreign Subsidiary or, if such merging or surviving entity in such transaction and (ii) at consolidating Subsidiary is a Foreign Subsidiary, any Wholly-Owned Subsidiary of the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; andBorrower that is a Foreign Subsidiary;
(gd) the Borrower may, for the purpose of transferring its jurisdiction of incorporation from Delaware to another state of incorporation, merge with and each into a Wholly-Owned Subsidiary in a transaction constituting a tax-free reorganization under 368(a)(1)(F) of the Subsidiary Guarantors may sellCode, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.as:
Appears in 1 contract
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors other Obligor to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors other Obligor to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors other Obligor to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this Section). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a Financing Designated Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition release (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect to the Administrative Agent and (ii) either (x) the amount by which of any excess availability under the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(fe) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(gf) the Borrower and each of the Subsidiary Guarantors other Obligors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Ares Capital Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not731105340 11299570 100 Revolving Credit Agreement THE BORROWER WILL NOT, nor will it permit any of the Subsidiary Guarantors toNOR WILL IT PERMIT ANY OF THE SUBSIDIARY GUARANTORS TO, acquire any business or property fromACQUIRE ANY BUSINESS OR PROPERTY FROM, or capital stock ofOR CAPITAL STOCK OF, or be a party to any acquisition ofOR BE A PARTY TO ANY ACQUISITION OF, any PersonANY PERSON, except for purchases or acquisitions of Investments and other assets in the normal course of the dayEXCEPT FOR PURCHASES OR ACQUISITIONS OF PORTFOLIO INVESTMENTS AND OTHER ASSETS IN THE NORMAL COURSE OF THE DAY-toTO-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentDAY BUSINESS ACTIVITIES OF THE BORROWER AND ITS SUBSIDIARIES AND NOT IN VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT. The Borrower will notTHE BORROWER WILL NOT, nor will it permit any of the Subsidiary Guarantors toNOR WILL IT PERMIT ANY OF THE SUBSIDIARY GUARANTORS TO, conveyCONVEY, sellSELL, leaseLEASE, transfer or otherwise dispose ofTRANSFER OR OTHERWISE DISPOSE OF, in one transaction or a series of transactionsIN ONE TRANSACTION OR A SERIES OF TRANSACTIONS, any part of its assetsANY PART OF ITS ASSETS, whether now owned or hereafter acquiredWHETHER NOW OWNED OR HEREAFTER ACQUIRED, but excluding BUT EXCLUDING (xX) assets ASSETS (other than InvestmentsOTHER THAN PORTFOLIO INVESTMENTS) sold or disposed of in the ordinary course of business SOLD OR DISPOSED OF IN THE ORDINARY COURSE OF BUSINESS (including to make expenditures of cash in the normal course of the dayINCLUDING TO MAKE EXPENDITURES OF CASH IN THE NORMAL COURSE OF THE DAY-toTO-day business activities of the Borrower and its SubsidiariesDAY BUSINESS ACTIVITIES OF THE BORROWER AND ITS SUBSIDIARIES) and AND (yY) subject to the provisions of SUBJECT TO THE PROVISIONS OF clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with with, or acquire all or substantially all of the assets of, any other Person so long as (i) the Borrower is the continuing or surviving 731105340 11299570 101 Revolving Credit Agreement entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (TPG Specialty Lending, Inc.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve or divide itself (or suffer any liquidation liquidation, dissolution or dissolutiondivision). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock Capital Stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) belowof this Section 6.03, Investments. 102 Revolving Credit Agreement Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and involve a wholly owned Subsidiary GuarantorGuarantor (and not the Borrower), the a wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerGuarantor;
(c) the capital stock Capital Stock of any Subsidiary of the Borrower may be sold, transferred (including a deemed transfer resulting from a division or plan of division) or otherwise disposed of to the Borrower or any wholly owned Subsidiary; provided that a sale, transfer or disposition of Capital Stock of a Subsidiary Guarantor of or Financing Subsidiary shall be to the BorrowerBorrower or a Subsidiary Guarantor;
(d) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose Dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansLoans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose Dispose of Investments to a Financing Subsidiary (other than to a Specified BDC Subsidiary) so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansLoans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with with, or acquire all or substantially all of the assets of, any other Person (including any Subsidiary Guarantor) so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; andprovided that, in no event shall the Borrower enter in any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States;
(g) the Borrower may consummate the First Eagle Acquisition so long as, upon the consummation of the First Eagle Acquisition, each of First Eagle Acquisition, Inc. and First Eagle Acquisition Sub LLC (or such other Subsidiary of the Borrower that is approved by the Administrative Agent and the Required Lenders) satisfies the requirements set forth in the definition of “Specified BDC Subsidiary”; and 103 Revolving Credit Agreement
(h) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Crescent Capital BDC, Inc.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve or divide itself (or suffer any liquidation liquidation, dissolution or dissolutiondivision). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock Capital Stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (xi) any transaction permitted under Section 6.05 or 6.12; and (ii) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash and Cash Equivalents in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments). Notwithstanding the foregoing provisions of this SectionSection 6.03:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerGuarantor;
(c) the capital stock Capital Stock of any Subsidiary of the Borrower any Obligor may be sold, transferred (including a deemed transfer resulting from a division or plan of division) or otherwise disposed of (including by way of consolidation or merger)
(i) to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerBorrower or (ii) so long as such transaction results in an Obligor receiving the proceeds of such disposition, to any other Person; provided that in the case of this clause (ii), (x) if such Person is an Affiliate of the Borrower that is not an Obligor, such transaction shall be at prices and on terms and conditions, taken as a whole, not materially less favorable to such Obligor other than in good faith is believed to be obtained on an arm’s-length basis from unrelated third parties, and (y) if such Subsidiary is a Subsidiary Guarantor or holds any Portfolio Investments, the Borrower would not have been prohibited from disposing of all such Portfolio Investments and all other assets of such Subsidiary in one transaction to such other Person under any other term of this Agreement;
(d) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose Dispose of Investments (other than to a Financing SubsidiarySubsidiary or Excluded Asset) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansConcurrent Transaction) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loansx) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to if such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, leasesale, transfer or otherwise dispose other disposition is made pursuant to, and in accordance with, a plan submitted and accepted in accordance with clause (e) of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such salesArticle VII or, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.if 141
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Fortress Private Lending Fund)
Fundamental Changes. The Borrower will not, nor will it permit any (a) None of the Subsidiary Guarantors toBorrower, any Guarantor or any Covenant Party will enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution)) unless otherwise permitted under the terms of this Agreement. The Borrower will not, nor will it permit any None of the Subsidiary Guarantors toBorrower, any Guarantor or any Covenant Party will acquire any business or property from, or capital stock of, or be a party to any acquisition Acquisition of, any PersonPerson except Permitted Acquisitions, except for purchases or acquisitions of Investments inventory and other assets property to be sold or used in the normal ordinary course of the day-to-day business activities business, Investments permitted under Section 7.5. None of the Borrower and its Subsidiaries and Borrower, any Guarantor or any Covenant Party will engage in a Disposition not in violation of permitted under the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquiredAgreement, but excluding (x) assets obsolete or worn-out property, tools or equipment no longer used or useful in its business (y) the Permitted Securitization and (z) any inventory or other than Investments) property sold or disposed of in the ordinary course of business and on ordinary business terms.
(including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiariesb) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this SectionSection 7.4:
(ai) any Restricted Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Restricted Subsidiary Guarantoror the Borrower; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Wholly Owned Subsidiary Guarantoror the Borrower, the wholly owned Wholly Owned Subsidiary Guarantor or the Borrower shall be the continuing or surviving corporation;
(bii) any Restricted Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to any Subsidiary that is a Wholly Owned Subsidiary of the Borrower or the Borrower itself; provided that if any wholly owned such sale is by a Restricted Subsidiary Guarantor to a Subsidiary of the Borrower;Borrower not a Restricted Subsidiary, then such Subsidiary shall have assumed all of the obligations of such Restricted Subsidiary hereunder and under the applicable Collateral Documents and (if not theretofore so pledged) all of the issued and outstanding capital stock of such Subsidiary shall be pledged under a Pledge Agreement executed by the applicable member of the Consolidated Group; and
(ciii) the capital stock of any Restricted Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor that is a Wholly Owned Subsidiary of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to ; provided that if any such sale, transfer or other disposition (is to a Subsidiary of the Borrower not a Restricted Subsidiary, then such Subsidiary shall have become a Restricted Subsidiary hereunder and any concurrent acquisitions all of Investments or payment the issued and outstanding capital stock of outstanding Loans) such Subsidiary shall be pledged under a Pledge Agreement executed by the Covered Debt Amount does not exceed applicable member of the Borrowing Base;Consolidated Group.
(ec) Without limitation or extending the Obligors may sellforegoing provisions of this Section 7.4, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer and the Lenders hereby expressly consent and agree to such effect the following transactions, upon the express terms and conditions set forth in this Section 7.4 (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;c):
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is establishment by Chicago Miniature Lamp-Sylvania I, B.V., a Netherlands company ("BVI"), of a wholly-owned subsidiary organized under the continuing or surviving entity in such transaction and laws of the Netherlands known as Chicago Miniature Lamp-Sylvania II B.V. ("BV2");
(ii) at the time thereof contribution by BV1 to the capital of BV2 of all of the shares of (A) Sylvania Lighting International, B.V., a Netherlands company ("SLI BV") and after giving effect thereto(B) Badalex Limited, no Default shall have occurred or be continuingan English limited company ("Badalex");
(iii) the sale by Flowil International Lighting (Holding) B.V., a Netherlands company, to SLI BV of all of the outstanding shares of Sylvania (UK) Holding Company Limited, an English limited company ("Sylvania UK Holding");
(iv) the sales by SLI BV to BV2, and by BV2 to Badalex, of all of the outstanding shares of Sylvania UK Holding; and
(gv) the Borrower and each release of any security interest of the Subsidiary Guarantors may sellAdministrative Agent, leasefor the benefit of itself and the Lenders, transfer or otherwise dispose in the share capital of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.Badalex;
Appears in 1 contract
Sources: Credit Agreement (Sli Inc)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve or divide itself (or suffer any liquidation or dissolutiondissolution or division). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock Capital Stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (xwx) any transaction permitted under Section 6.05 or 6.12, and (xy) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash Cash and Cash 763013574 21680120763013574.7 Equivalents in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower Obligor may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock Capital Stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of (including by way of consolidation or merger)
(i) to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerBorrower or (ii) so long as such transaction results in an Obligor receiving the proceeds of such disposition, to any other Person, provided, that in the case of this clause (ii), if such Subsidiary is a Subsidiary Guarantor or holds any Portfolio Investments, the Borrower would not have been prohibited from disposing of any such Portfolio Investments to such other Person under any other term of this Agreement;
(d) the Obligors may sell, transfer or otherwise dispose Dispose of Investments (other than to a Financing Subsidiary or Foreign Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansLoans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose Dispose of Investments to a Financing Subsidiary or Foreign Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansLoans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release sale, transfer or other disposition is not diminished as a result of such release sale, transfer or other disposition or (y) the Borrowing Base immediately after giving effect to such release sale, transfer or other disposition is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with (or acquire all or substantially all of the assets of) any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect theretothereto (and any concurrent acquisitions of Portfolio Investments by the Borrower or payment of outstanding Loans), no Default shall have occurred or be continuing; andprovided that, in no event shall the Borrower enter in any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States; 763013574 21680120763013574.7
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year; and
(h) the Obligors may dissolve or liquidate (i) any Immaterial Subsidiary or (ii) any Subsidiary so long as (x) in connection with such dissolution or liquidation, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to an Obligor and (y) such dissolution or liquidation is not materially adverse to the Lenders and the Borrower determines in good faith that such dissolution or liquidation is in the best interests of the Borrower.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Morgan Stanley Direct Lending Fund)
Fundamental Changes. The Borrower will not, nor and will it permit any of the Subsidiary Guarantors toensure that each Borrower Group Company will not, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor and will it permit any of the Subsidiary Guarantors toensure that each Borrower Group Company will not, (i) acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, Person except for purchases of property to be sold or acquisitions of Investments and other assets used in the normal ordinary course of business or (ii) issue or transfer any Capital Stock to the day-to-day business activities of Borrower Parent; provided the Borrower and its Subsidiaries Fly Malta may issue Capital Stock to the Borrower Parent and not in violation Borrower Parent may acquire the Capital Stock of Fly HoldCo pursuant to the Share Purchase Agreement and provided, further, that any Capital Stock other than common equity shall have terms and conditions acceptable to the Administrative Agent and be pledged in favor of this Agreement or any other Loan the Security Trustee under the terms of the applicable Security Document. The Borrower will not, nor and will it permit any of the Subsidiary Guarantors toensure that each Borrower Group Company will not, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsbusiness or property, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business acquired (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower receivables and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investmentsleasehold interests). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of Borrower Group Company (other than the Borrower Borrower, Fly Malta or Fly HoldCo) may be merged or consolidated with or into into, or the Borrower or ownership interest in the same transferred to, any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary GuarantorBorrower Group Company (other than the Borrower, the wholly owned Subsidiary Guarantor shall be the continuing Fly Malta or surviving corporationFly HoldCo);
(b) any Dormant Subsidiary Guarantor of the Borrower may be dissolved;
(c) any Aircraft Owning Entity may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to the any other Aircraft Owning Entity that is a Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;Group Company; and
(d) the Obligors Borrower Group Companies may sellsell Aircraft, transfer Aircraft Interests or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer related Ownership Interests or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers assets to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount extent not prohibited by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearSection 6.08 below.
Appears in 1 contract
Fundamental Changes. The Borrower Parent will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower Parent will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, Person except for purchases of inventory and Credit Agreement other property to be sold or acquisitions of Investments and other assets used in the normal ordinary course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentInvestments permitted under Section 7.05(i). The Borrower Parent will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any all or a substantial part of its assetsbusiness or property, whether now owned or hereafter acquiredacquired (including receivables and leasehold interests, but excluding (x) assets obsolete or worn-out property, tools or equipment no longer used or useful in its business so long as the amount thereof sold in any single fiscal year by the Borrower and its Subsidiaries shall not have a fair market value in excess of $250,000, (y) any inventory or other than Investments) property sold or disposed of in the ordinary course of business and on ordinary business terms and (including to make expenditures of cash z) any other assets having a fair market value not exceeding $1,000,000 in the normal course aggregate for any fiscal year of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, InvestmentsBorrower). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower (other than a Securitization Subsidiary) may be merged or consolidated with or into the Borrower or any other such Subsidiary, and any Securitization Subsidiary Guarantormay be merged or consolidated with or into any other Securitization Subsidiary; provided that that, if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary GuarantorSubsidiary, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower (other than a Securitization Subsidiary) may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower, and any Securitization Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its property (upon voluntary liquidation or otherwise) to any other Securitization Subsidiary;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;; and
(d) the Obligors Borrower or any of its Subsidiaries may sellconvey, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 Securitization Program Assets in connection with any fiscal yearPermitted Securitization.
Appears in 1 contract
Fundamental Changes. The Borrower will not, nor will it permit any of the its Subsidiaries (other than a Financing Subsidiary Guarantors or an Immaterial Subsidiary) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the its Subsidiaries (other than a Financing Subsidiary Guarantors or an Immaterial Subsidiary) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries or Immaterial Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its SubsidiariesSubsidiaries (other than a Financing Subsidiary)) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than ownership interests in Financing Subsidiaries), Cash and Cash Equivalents to a Financing Subsidiary (including, for clarity, as investments (debt or equity) or capital contributions) so long as (i) prior to and immediately after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and no Default or Event of Default exists, and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Loans or Other Covered Indebtedness), either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release sale, transfer or other disposition is not diminished as a result of such release sale, transfer or other disposition or (y) the Borrowing Base immediately after giving effect to such release sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Loans or Other Covered Indebtedness) is at least 110115% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person Person, so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default or Event of Default shall have occurred or be continuing; and;
(g) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year;
(h) any Subsidiary of the Borrower may be liquidated or dissolved; provided that in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower; and
(i) an Obligor may transfer assets to a Financing Subsidiary for the sole purpose of facilitating the transfer of assets from one Financing Subsidiary (or a Subsidiary that was a Financing Subsidiary immediately prior to such disposition) to another Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”), provided that (i) no Default exists or is continuing at such time, (ii) the Covered Debt Amount shall not exceed the Borrowing Base at such time and (iii) the Transferred Assets were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day that such assets are transferred by such Obligor to the transferee Financing Subsidiary.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Oaktree Specialty Lending Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash and dispositions of investments in connection with exits and work-outs in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this Section). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that (i) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing, (ii) if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; corporation and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (BlackRock Kelso Capital CORP)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, acquire any business or property from, or capital stock Equity Interests of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be (i) between a Subsidiary or a Subsidiary Guarantor and the Borrower, the Borrower shall be the continuing or surviving entity and (ii) between a Subsidiary and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock Equity Interests of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing SubsidiarySubsidiary or the Parent or any of their respective affiliates) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments Portfolio Investments, Cash and Cash Equivalents to a Financing Subsidiary so long as (i) prior to and immediately after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Loans or Other Covered Indebtedness), the Covered Debt Amount does not exceed the Borrowing Base and no Default exists, and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect, (ii) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Loans) the Loans or Other Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) Indebtedness), either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release sale, transfer or other disposition is not diminished as a result of such release sale, transfer or other disposition or (y) the Borrowing Base immediately after giving effect to such release sale, transfer or other disposition is at least 110120% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person Person, so long as (ix) the Borrower is the continuing or surviving entity in such transaction and at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing or (y) if such Person is the Parent and the Borrower is not the surviving entity, (i) such Person shall expressly assume, by an amendment or supplement, executed and delivered to the Administrative Agent and each Lender and in a form satisfactory to the Administrative Agent and the Required Lenders, the due and punctual payment of the principal of and interest on all Loans and other obligations and the performance of every covenant and every other obligation or liability of this Agreement and the other Loan Documents on the part of the Borrower to be performed or observed, all as provided herein, (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and, (iii) the Borrower shall have provided at least ten (10) days’ prior written notice thereof to the Administrative Agent (which shall provide a copy of such notice to each Lender) and the Required Lenders shall not have affirmatively objected in writing to such merger or consolidation within ten (10) days of the notice thereof as provided above, (iv) the Borrower shall have taken all steps necessary or requested by the Administrative Agent to preserve the effectiveness, perfection and priority of the Liens created under the Security Documents and (v) the Borrower shall have delivered to the Administrative Agent and each Lender an opinion of counsel concerning such matters as the Administrative Agent may reasonably require;
(g) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer transfers and dispositions does not exceed $5,000,000 in any fiscal year; provided that dispositions of any such property or assets received in connection with an enforcement action on account of a Portfolio Investment shall not be subject to such limit; and
(h) any Subsidiary of the Borrower may be liquidated or dissolved; provided that (i) in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower and (ii) the Borrower determines in good faith that such liquidation is in the best interest of the Borrower and is not materially disadvantageous to the Lenders.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (TCP Capital Corp.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries or Immaterial Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries or Immaterial Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including, without limitation, Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (other than the Financing Subsidiaries) (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries (other than the Financing Subsidiaries)) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Collateral Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments Portfolio Investments, Cash and Cash Equivalents to a Financing Subsidiary so long as (i) prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Collateral Base and no Default exists and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect effect, and (ii) either (x) the amount by which the Borrowing Collateral Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Collateral Base immediately after giving effect to such release is at least 110120% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person Person, so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 1 contract
Sources: Senior Secured Term Loan Credit Agreement (THL Credit, Inc.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter (a) Merge or consolidate with or into any transaction of merger or consolidation or amalgamation, Person or liquidate, wind wind-up or dissolve itself (itself, or permit or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any EXCEPT, that so long as no Default or Event of the Subsidiary Guarantors to, acquire any business Default exists or property fromwould result therefrom:
(i) Subsidiaries of Borrowers may merge or consolidate with or into, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, selltransfer, lease, transfer lease or otherwise dispose (whether in one transaction or in a series of transactions) of all or substantially all of any of their Properties (whether now owned or hereafter acquired) to, or in favor of, Borrowers or another Subsidiary of Borrowers;
(ii) Subsidiaries of Borrowers may be liquidated, wound up or dissolved following any conveyance, transfer, lease or other disposition (whether in one transaction or a series of transactions) of all or substantially all of their Properties permitted under SECTION 7.03(A)(I);
(iii) Subsidiaries of Borrowers may engage in reverse mergers or internal reorganizations whereby a Subsidiary or Subsidiaries merge into or with one or more Subsidiaries of the Borrowers or any Guarantor or any combination thereof; and
(iv) Borrowers or any Subsidiary of Borrowers may merge, any part or consolidate with another Person; PROVIDED that each of the following conditions are satisfied: (1) at the inception of the transaction, Borrowers or such Subsidiary are intended to be and will be the surviving Person after the consummation of the contemplated transaction; (2) To The Best Knowledge of Borrowers, prior to the consummation of the transaction, the transaction will not 68 cause Borrowers to be in breach of the representations and warranties of this Agreement and the other Loan Documents; (3) the transaction will not cause Borrowers to be in breach of the covenants of this Agreement and the other Loan Documents, including financial covenants after the consummation thereof; and (4) Borrowers provide Administrative Agent with a pro-forma Compliance Certificate that demonstrates that after the consummation of the proposed transaction the Borrowers will be in compliance with the financial covenants of this Agreement.
(v) Borrowers may acquire additional equity interests in the managing members of the Real Estate Companies as contemplated by the Casden Merger Agreement. Notwithstanding the foregoing, no Subsidiary shall merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets, Properties (whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold to or disposed in favor of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any another Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between would result in a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;violation of any covenant in this Agreement.
(b) Amend its Organization Documents in any Subsidiary Guarantor respect which is, in the opinion of the Borrower may sellRequisite Lenders, leasematerially adverse to the interests of the Lenders. Without limiting the foregoing, transfer under no circumstances (i) shall the Organization Documents of the Borrowers be changed so as to eliminate the transferability of Partnership Units of AIMCO for common Stock in the REIT on a one-to-one basis (subject to adjustment as provided in the Organization Documents of AIMCO) or otherwise dispose (ii) shall the Organization Documents of a Management Entity be changed so as to eliminate or reduce any obligation to pay preferred Stock dividends, without the prior consent of the Requisite Lenders; PROVIDED, HOWEVER, that consent shall not be required for the foregoing solely to the extent any such changes or amendments are required in connection with the consolidation or merger of any Management Entity into a Wholly-Owned Subsidiary of the Borrowers and such new or all of its assets (upon voluntary liquidation or otherwise) surviving Person provides a Guaranty to the Borrower or any wholly owned Subsidiary Guarantor Lenders in accordance with the requirements of the Borrower;SECTION 6.16(c).
(c) Issue any preferred Stock or preferred Partnership Units; PROVIDED, HOWEVER, the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower REIT or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors its Subsidiaries may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary issue preferred Stock and/or preferred Partnership Units so long as (i) after giving effect to if such salepreferred Stock or preferred Partnership Units has any mandatory redemption feature or has a redemption feature which is exercisable at the option of the holder thereof (other than a change of control put feature), transfer then the face amount of such preferred Stock or other disposition (and any concurrent acquisitions preferred Partnership Units shall be deemed Unsecured Debt for all purposes of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect this Agreement; and (ii) any distributions with respect thereto shall comply with the provisions of this Agreement (including, without limitation, SECTION 7.07).
(d) Change the organizational structure of Borrowers or any of their respective Subsidiaries from that which is reflected in the Organizational Chart which is, in the reasonable opinion of the Requisite Lenders, materially adverse to any Management Entity, without the prior written consent of the Requisite Lenders, EXCEPT for mergers and changes in the equity structure of Subsidiaries and the formation or acquisition of Subsidiaries in accordance with this SECTION 7.03; PROVIDED, HOWEVER, that consent shall not be required for the foregoing solely to the extent any such changes are required in connection with the consolidation or merger of any Management Entity into a Wholly-Owned Subsidiary of the Borrowers and such new or surviving Person provides a Guaranty to the Lenders in accordance with the requirements of SECTION 6.16(c).
(e) Terminate the employment of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and/or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ as Chief Executive Officer and President of the REIT, respectively, or remove either or both of them from such positions without the prior written consent of Requisite Lenders (xother than in the event of death or permanent disability). (f) Other than the amount Casden Acquisition and the acquisition of additional equity interests in the managing members of the Real Estate Companies as contemplated by which the Borrowing Base exceeds Casden Merger Agreement, acquire by purchase or otherwise all or substantially all of the Covered Debt Amount business or Property of, or Stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, where such business, Property, Stock or other evidence of beneficial ownership and/or division or line of business to be acquired has a fair market value in excess of 20% of the Gross Asset Value in effect immediately prior to such release is not diminished as a result acquisition, without the prior written consent of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearRequisite Lenders.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Apartment Investment & Management Co)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including, without limitation, Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than Portfolio Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries (other than the Financing Subsidiaries)) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing SubsidiarySubsidiary or Asset Manager) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments Portfolio Investments, Cash and Cash Equivalents to a Financing Subsidiary or Asset Manager so long as (i) prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and no Default exists and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and effect, (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110120% of the Covered Debt Amount;Amount and (iii) in the case of any sale, transfer or other disposition to Fifth Street Funding, LLC, if the Structured Facility Agreements – FSF are outstanding, the Reinvestment Period (as defined in the Structured Loan Agreement - FSF) has not ended, or in the event that the Structured Facility Agreements – FSF have been terminated or replaced, the lender holding liens on the assets of Fifth Street Funding, LLC, if any, has not instituted a process whereby the principal portion of loan assets held by Fifth Street Funding, LLC may not be reinvested or distributed to its equity holder.
(f) the Borrower may merge or consolidate with any other Person Person, so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and;
(g) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year; and
(h) any Subsidiary of the Borrower may be liquidated or dissolved, provided that, in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower.; and
(i) the Borrower may sell or transfer, in one or more transactions, Equity Interests of Fifth Street Funding II, LLC (or Fifth Street Funding II, LLC may issue new Equity Interests) to any Person for a fair value thereof, provided that no Default or Event of Default has occurred and is continuing or would occur as a result of such transfer or issuance.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Fifth Street Finance Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including, without limitation, Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (other than Financing Subsidiaries) (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries (other than Financing Subsidiaries)) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be (i) between a Subsidiary or a wholly owned Subsidiary Guarantor and the Borrower, the Borrower shall be the continuing or surviving entity and (ii) between a Subsidiary and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base;
(e) subject to the prior written consent of the Required Lenders and the Administrative Agent, the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than ownership interests in Financing Subsidiaries), Cash and Cash Equivalents to a Financing Subsidiary so long as (i) prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Loans) Loans or Other Covered Indebtedness), the Covered Debt Amount does not exceed the Borrowing Base and no Default exists, and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and effect, (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110120% of the Covered Debt Amount, and (iii) the sum of (x) all sales, transfers or other dispositions under this clause (e) that occur after the Revolver Termination Date and do not result in Net Asset Sale Proceeds for fair value that are applied in accordance with Section 2.08(d)(i) and (y) all Investments under Section 6.04(e) that occur after the Revolver Termination Date, shall not exceed 20% of the Commitments on the Revolver Termination Date;
(f) subject to the prior written consent of the Required Lenders and the Administrative Agent, an Obligor may transfer assets to a Financing Subsidiary for the sole purpose of facilitating the transfer of assets from one Financing Subsidiary (or a Subsidiary that was a Financing Subsidiary immediately prior to such disposition) to another Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”), provided that (i) no Default exists or is continuing at such time, (ii) the Covered Debt Amount shall not exceed the Borrowing Base at such time and (iii) the Transferred Assets were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day that such assets are transferred by such Obligor to the transferee Financing Subsidiary;
(g) the Borrower may merge or consolidate with any other Person Person, so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(gh) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer transfers and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Alcentra Capital Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve or divide itself (or suffer any liquidation liquidation, dissolution or dissolutiondivision). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock Capital Stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold any transaction permitted under Section 6.01(f), 6.05 or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments6.12. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly wholly-owned Subsidiary Guarantor, the wholly wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation;entity; 145 Revolving Credit and Term Loan Agreement
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock Capital Stock of any Subsidiary of the Borrower any Obligor may be sold, transferred or otherwise disposed of (including by way of consolidation or merger)
(i) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
Borrower or (d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiaryii) so long as such transaction results in an Obligor receiving the proceeds of such disposition, to any other Person (excluding any Affiliate of the Borrower that is not an Obligor at any time a Default or an Event of Default has occurred and is continuing); provided that in the case of this clause (ii), if such Subsidiary is a Subsidiary Guarantor or holds any Portfolio Investments, immediately after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansConcurrent Transactions, the Borrower is in pro forma compliance with Sections 6.07(b) and (c), the Covered Debt Amount does not exceed the Borrowing BaseBase and either (x) the amount of any excess availability under the Borrowing Base immediately prior to such disposition is not diminished as a result of such disposition or (y) the Borrowing Base immediately after giving effect to such disposition is at least 110% of the Covered Debt Amount;
(d) the Obligors may sell or dispose of assets (other than to an Immaterial Subsidiary, a Financing Subsidiary, or an Excluded Asset) in the ordinary course of business (including to make expenditures of cash and Cash Equivalents in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and the use of cash and Cash Equivalents in the ordinary course of business)
(e) the Obligors may (i) sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose Dispose of Investments assets to an Immaterial Subsidiary, a Financing Subsidiary or an Excluded Asset or (ii) repurchase from any Immaterial Subsidiary, Financing Subsidiary, or Excluded Asset any assets transferred or contributed, directly or indirectly, to such Immaterial Subsidiary, Financing Subsidiary or Excluded Asset, so long as as, in each case of clause (i) or clause (ii), (x) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansConcurrent Transaction) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (iiy) either (x1) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release sale, transfer or other disposition is not diminished as a result of such release sale, transfer or other disposition or (y2) the Adjusted Gross Borrowing Base immediately after giving effect to such release sale, transfer or other disposition is at least 110% of the Covered Debt Amount; provided that, for the purposes of this clause (y) and in connection with the organization of any CLO Security, the Borrowing Base and the Covered Debt Amount, as applicable, shall be tested as of the pricing date for such CLO Security;
(f) the Borrower may merge or consolidate with with, or acquire all or substantially all of the assets of, any other Person (including any Subsidiary Guarantor) so long as (i) the Borrower is the continuing or surviving entity in such transaction and (iiii)(x) with respect to any merger or consolidation with, or acquisition by an Obligor of all or substantially all of the assets of, any other business development company advised by the External Managers, as of the date of entering into the applicable agreement governing such merger, consolidation or acquisition or (y) with respect to any other merger, consolidation or acquisition at the time thereof and thereof, and, in each case, after giving pro forma effect theretothereto and any Concurrent Transaction, no Event of Default shall have occurred or be continuing; andprovided that, in no event shall the Borrower enter in any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States; 146 Revolving Credit and Term Loan Agreement
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 15,000,000 in any fiscal year;
(h) the Obligors may transfer assets to an Excluded Asset or a Financing Subsidiary for the sole purpose of facilitating the transfer of assets from one Excluded Asset or Financing Subsidiary (or a Subsidiary that was an Excluded Asset or a Financing Subsidiary immediately prior to such disposition) to another Excluded Asset or Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”); provided that (i) no Event of Default exists and is continuing at such time, (ii) the Covered Debt Amount shall not exceed the Borrowing Base at such time and (iii) the Transferred Assets were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day that such assets are transferred by such Obligor to the transferee Excluded Asset or Financing Subsidiary and (y) in connection with a Back-to-Back Transaction;
(i) the Borrower may dissolve or liquidate any Subsidiary Guarantor so long as in connection with such dissolution or liquidation, any and all of the assets of such Subsidiary Guarantor shall be distributed or otherwise transferred to an Obligor;
(j) the Obligors may sell, transfer or otherwise dispose of direct ownership interests in any Excluded Asset to any Subsidiary that is not an Obligor, if immediately after giving effect to such sale, transfer or other disposition and any Concurrent Transactions, no more than 25% of the Value of all Obligors’ direct ownership interests in all Excluded Assets (calculated as of the date of the most recently delivered financial statements on or prior to the date of such sale, transfer or other disposition) are subject to Excluded Asset Liens or have been sold, transferred or otherwise disposed of to a Subsidiary that is not an Obligor pursuant to this clause (k); provided that, notwithstanding that a transfer may violate such 25% limitation, such transfer shall nevertheless be permitted if it is required by law, rule, regulation or interpretive position of the SEC;
(k) the Borrower or the other Obligors may dissolve or liquidate (i) any Immaterial Subsidiary or (ii) any other Subsidiary so long as, with respect to this clause (ii), (A) in connection with such dissolution or liquidation, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to an Obligor (or, if such Subsidiary is an Excluded Asset, to another Excluded Asset) and (B) such dissolution or liquidation is not materially adverse to the Lenders and the Borrower determines in good faith that such dissolution or liquidation is in its best interests; and
(l) the Borrower may deposit and use cash to (i) purchase Capital Stock of the Borrower in connection with a tender offer to the extent such purchase would be, at the time approved by the board of trustees of the Borrower, permitted pursuant to Section 6.05 or (ii) repay Indebtedness incurred pursuant to Section 6.01(q); provided that in no event shall the Borrower enter into any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). , except:
(i) any Subsidiary of the Borrower may be merged or consolidated with or into the Borrower or another Subsidiary, PROVIDED (A) that if any such transaction shall be between a Subsidiary and the Borrower, the Borrower shall be the continuing or surviving corporation, and (B) if any such transaction shall be between a Subsidiary and another Subsidiary, the surviving or continuing Subsidiary shall be a Subsidiary Guarantor; and
(ii) any merger or consolidation permitted under clause (iii) of paragraph (c) of this Section.
(b) The Borrower will not, nor will it permit any of its Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or a substantial part of its business or property, whether now owned or hereafter acquired, except:
(i) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its property (upon voluntary liquidation or otherwise) to the Borrower or another Subsidiary Guarantors Guarantor of the Borrower; and
(ii) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or another Subsidiary Guarantor of the Borrower.
(c) The Borrower will not, nor will it permit any of its Subsidiaries to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any PersonPerson (whether by way of purchase of such assets or stock, except by merger or consolidation or otherwise), except:
(i) for any merger or consolidation permitted under clause (i) of paragraph (a) of this Section;
(ii) for purchases or acquisitions of Investments inventory and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) property to be sold or disposed of used in the ordinary course of business and Investments permitted under Section 6.06(a); and
(including to make expenditures of cash in the normal course of the day-to-day business activities of iii) the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) or any Subsidiary Guarantor of the Borrower may acquire any business, and the related assets, of any other Person (whether by way of purchase of assets or stock, by merger or consolidation or otherwise), so long as: [A] if such acquisition shall be merged effected by merger or consolidated with or into consolidation involving the Borrower, the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
entity; [B] such acquisition (bif by purchase of stock) any Subsidiary Guarantor of shall be effected in such manner so that the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned acquired entity becomes a Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as ; [C] after giving effect to such sale, transfer or other disposition acquisition (and any concurrent acquisitions the provisions of Investments or payment of outstanding LoansSection1.03) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (Borrower and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and its Subsidiaries shall be in compliance with Section 6.10 ; [D] the Borrower delivers shall have delivered to the Administrative Agent a certificate of a Financial Officer in the form of EXHIBIT G showing calculations in reasonable detail to such effect and demonstrate compliance with clause (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount iii)[C] immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amountabove;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 1 contract
Sources: Credit Agreement (Wilson Greatbatch Technologies Inc)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries or Immaterial Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries or Immaterial Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including, without limitation, Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (other than the Financing Subsidiaries) (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries (other than the Financing Subsidiaries)) and (y) subject to the provisions of clauses (de), (f) and (eg) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) any Subsidiary of the Borrower may be liquidated or dissolved; provided that (i) in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower and (ii) the Borrower determines in good faith that such liquidation is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(d) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(de) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base;
(ef) the Obligors may sell, transfer or otherwise dispose of Investments Portfolio Investments, Cash and Cash Equivalents to a Financing Subsidiary (including in the form of advances) so long as (i) prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and no Default exists and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and effect,, (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110115% of the Covered Debt AmountAmount (after giving pro forma effect to any prepayments of the Covered Debt Amount in connection with such disposition);
(fg) an Obligor may transfer assets to a Financing Subsidiary for the sole purpose of facilitating the transfer of assets from one Financing Subsidiary (or a Subsidiary that was a Financing Subsidiary immediately prior to such disposition) to another Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”), provided that (i) no Default exists or is continuing at such time, (ii) the Covered Debt Amount shall not exceed the Borrowing Base at such time and (iii) the Transferred Assets were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day that such assets are transferred by such Obligor to the transferee Financing Subsidiary;
(h) the Borrower and its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year;
(i) the Borrower and its Subsidiaries may deposit and use cash to purchase shares of common stock of the Borrower in connection with the Tender Offer; and
(j) the Borrower may merge or consolidate with any other Person Person, so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or and be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (FS Investment CORP)
Fundamental Changes. The Borrower Parent Guarantor will not, nor will it permit any of the Subsidiary Guarantors its Included Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower Parent Guarantor will not, nor will it permit any of the Subsidiary Guarantors its Included Subsidiaries to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, Person except for purchases or acquisitions of Investments inventory and other assets property to be sold or used in the normal ordinary course of the day-to-day business activities of the Borrower business, Investments permitted under Section 7.05 and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentCapital Expenditures permitted under Section 7.09(c). The Borrower Parent Guarantor will not, nor will it they permit any of the Subsidiary Guarantors its Included Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsbusiness or property, whether now owned or hereafter acquiredacquired (including receivables and leasehold interests, but excluding (x) assets obsolete or worn-out property, tools or equipment no longer used or useful in its business and (y) any inventory or other than Investments) property sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day and on ordinary business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investmentsterms). Notwithstanding the foregoing provisions of this Section:
(a) any Included Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other such Included Subsidiary Guarantoror dissolved and its affairs wound up; provided that (i) if any such transaction shall be between a Included Subsidiary Guarantor that is not an Obligor and an Obligor, the Obligor shall be the continuing or surviving corporation and (ii) if any such transaction shall be between a Included Subsidiary that is not a Wholly Owned Subsidiary and a wholly owned Subsidiary GuarantorWholly Owned Subsidiary, the wholly owned Wholly Owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Included Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of Wholly Owned Subsidiary; provided that, if the Borrowertransferor in any such transaction shall be an Obligor, the transferee shall be an Obligor;
(c) the capital stock of any Included Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Wholly Owned Subsidiary Guarantor of ; provided that, if the Borrowertransferor in any such transaction shall be an Obligor, the transferee shall be an Obligor;
(d) unless a Default has occurred and is continuing, the Obligors Borrower or any of its Included Subsidiaries may sell, transfer or otherwise dispose sell Property Designated For Sale for cash and for fair market value as determined by the Board of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing BaseDirectors;
(e) the Obligors Borrower or any of its Subsidiaries may sell, transfer or otherwise dispose of Investments obsolete or surplus equipment to a Financing Subsidiary so long as the extent that (i) after giving effect to such sale, transfer equipment is exchanged for credit against the purchase price of similar replacement equipment or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result proceeds of such release or (y) dispositions are reasonably promptly applied to the Borrowing Base immediately after giving effect to purchase price of such release is at least 110% of the Covered Debt Amountreplacement equipment;
(f) unless a Default has occurred and is continuing, the Borrower may merge sell all or consolidate any portion of its equity interests in any Joint Venture for cash for fair market value, subject to the conditions that (a) the amount of consideration to be received by the Borrower (including the amount of any Guarantee theretofore issued by the Borrower to be cancelled in connection with such sale) has been determined by the Board of Directors to be fair to the Borrower, (b) if the aggregate amount of such consideration exceeds $10,000,000, the Board of Directors shall have received a fairness opinion in connection with such sale rendered by a recognized institution with established expertise in valuing transactions of such type and (c) in connection with such sale, all Guarantees theretofore issued by the Borrower in support of obligations of such Joint Venture shall be cancelled or reduced at least in proportion to the percentage of interests sold;
(g) unless a Default has occurred and is continuing, the Borrower and its Included Subsidiaries may sell other property for cash for fair market value for consideration not exceeding $10,000,000 in any other Person so long as Fiscal Year;
(h) leases and subleases of property in the ordinary course of business;
(i) non-exclusive licenses of Intellectual Property in the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuingordinary course of business; and
(gj) the Parent Guarantor and its Included Subsidiaries may sell assets to the extent permitted by Section 7.10. The Collateral Agent agrees to execute such UCC termination statements or partial release statements, as applicable, and other Lien release documents as the Borrower and each reasonably requests to evidence the release of the Subsidiary Guarantors may sellCollateral Agent's Lien in respect of property conveyed, leasesold, transfer transferred or otherwise dispose disposed of equipment or other property or assets in compliance with this Section 7.03; provided that do not consist the Borrower shall provide to the Collateral Agent evidence of Investments so long such transaction's compliance with this Section 7.03 as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearCollateral Agent may reasonably request.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Krispy Kreme Doughnuts Inc)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, acquire any business or property from, or capital stock or other ownership interest of, or be a party to any acquisition of, any Person, Person except for purchases or acquisitions of Investments Satellites, transponders and other assets equipment and property to be sold or used in the normal ordinary course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentCapital Expenditures permitted under Section 6.10(d). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsbusiness or property, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business acquired (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower receivables and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investmentsleasehold interests). Notwithstanding the foregoing provisions of this Section:
(a) any Restricted Subsidiary Guarantor of the Borrower (other than a License Subsidiary) may be merged or consolidated with or into the Borrower or any other Subsidiary GuarantorRestricted Subsidiary; provided that (i) if any such transaction shall be between a Restricted Subsidiary and a Wholly Owned Restricted Subsidiary, a Wholly Owned Restricted Subsidiary shall be the continuing or surviving entity, (ii) if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary that is not a Subsidiary Guarantor, the wholly owned a Subsidiary Guarantor shall be the Credit Agreement continuing or surviving corporationentity and (iii) any License Subsidiary may be merged or consolidated with any other License Subsidiary;
(b) any Subsidiary Guarantor of the Borrower or any Restricted Subsidiary (other than a License Subsidiary) may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Wholly Owned Restricted Subsidiary, provided that (i) except as otherwise specified in the following subclause (iii), any such transfer by the Borrower or a Subsidiary Guarantor shall be made to the Borrower or a Subsidiary Guarantor, (ii) any License Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its property (upon voluntary liquidation or otherwise) only to another License Subsidiary and (iii) any such transaction with a Special Purpose Foreign Subsidiary shall consist solely of the Borrowersale, lease, transfer or other disposition of transponders by the Borrower and its Restricted Subsidiaries for use by such Special Purpose Foreign Subsidiary in the ordinary course of its business (provided that the aggregate number of transponders transferred to all Special Purpose Foreign Subsidiaries pursuant to this subclause (iii) shall not exceed 75 at any time);
(c) the capital stock or other ownership interest of any Restricted Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Wholly Owned Restricted Subsidiary, provided that the capital stock or other ownership interest of a License Subsidiary Guarantor may only be sold, transferred or otherwise disposed of the Borrowerto an Obligor;
(d) the Obligors Borrower or any Wholly Owned Restricted Subsidiary may sellacquire any business, transfer and the related assets, of any other Person whether by way of purchase of assets or stock, by merger or consolidation or otherwise dispose of Investments (other than to any such acquisition being herein called a Financing Subsidiary) "Permitted Business Acquisition"), so long as:
(i) the aggregate Purchase Price of any individual such acquisition shall not exceed (x) $100,000,000 during any single fiscal year or (y) $500,000,000 during the term of this Agreement, provided that without regard to or usage of such limits, (A) the Borrower shall be permitted to make a Permitted Business Acquisition by Reinvestment of the Net Cash Proceeds of any Equity Issuance or the incurrence of any Affiliate Subordinated Indebtedness following the occurrence of such Equity Issuance or such incurrence as after giving effect contemplated by Section 2.10(b)(ii) during the period contemplated therein and (B) the Borrower shall be permitted to such sale, transfer make a Permitted Business Acquisition through the issuance of shares of its common stock (or the capital stock or other disposition ownership interests of a Holding Company, or any parent company of such Holding Company or any Permitted Holder) to the respective seller(s) in such Acquisition,
(ii) such acquisition (if by purchase of assets, merger or consolidation) shall be effected in such manner so that the acquired business, and any concurrent acquisitions of Investments the related assets, are owned either by the Borrower or payment of outstanding Loans) a Wholly Owned Restricted Subsidiary and, if effected by merger or consolidation involving the Covered Debt Amount does not exceed Borrower, the Borrowing BaseBorrower shall be the continuing or surviving entity and, if effected by merger or Credit Agreement consolidation involving a Wholly Owned Restricted Subsidiary, a Wholly Owned Restricted Subsidiary shall be the continuing or surviving entity;
(eiii) such acquisition (if by purchase of stock) shall be effected in such manner so that the Obligors may sell, transfer or otherwise dispose of Investments to acquired entity becomes a Financing Subsidiary so long as Wholly Owned Restricted Subsidiary;
(iiv) after giving effect to such saleacquisition the Borrower shall be in compliance with Section 6.10 (the determination of such compliance to be calculated on a pro forma basis, transfer or other disposition (as at the end of and for the period of four fiscal quarters most recently ended prior to the date of such acquisition for which financial statements of the Borrower and its Subsidiaries are available, under the assumption that such acquisition shall have occurred, and any concurrent acquisitions Indebtedness in connection therewith shall have been incurred, at the beginning of Investments or payment the applicable period, and under the assumption that interest for such period had been equal to the actual interest rate in effect for such Indebtedness on the date of outstanding Loanssuch acquisition) and, in the Covered Debt Amount does not event that the Purchase Price in respect of such acquisition shall exceed the Borrowing Base and $50,000,000, the Borrower delivers shall have delivered to the Administrative Agent a certificate of a Financial Officer showing calculations in reasonable detail to such effect and demonstrate compliance with this subclause (iiiv); and
(v) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof acquisition and after giving effect thereto, no Default shall have occurred or and be continuing; and;
(e) the Borrower and its Subsidiaries may effect Permitted Dispositions, provided that not less than 75% of the aggregate consideration received pursuant to any Permitted Disposition (other than a Disposition described in clause (c) or (d) of the definition of "Permitted Disposition" in Section 1.01) shall consist of cash and the balance of such consideration may consist of Disposition Investments (except that, notwithstanding the foregoing, (i) the Borrower and its Subsidiaries may effect Permitted Dispositions for an aggregate consideration up to but not exceeding $30,000,000 during the term of this Agreement without regard to such 75% requirement and (ii) the Borrower and its Subsidiaries may effect the Disposition of a Satellite described in clause (e) of such definition of "Permitted Disposition" through the transfer of a Satellite in exchange for a replacement Satellite, or in exchange for a combination of cash and a replacement Satellite);
(f) PanAmSat may at any time enter into a transaction intended to make the Borrower hereunder a Wholly Owned Subsidiary of a Holding Company pursuant to one of the following transactions:
(i) subject to the satisfaction of the requirements set forth below, PanAmSat may consolidate or merge with or into, or transfer all or substantially all of its assets to, a Wholly Owned Restricted Subsidiary organized under the law of a State of the United States of America so long as all or substantially all of the assets of PanAmSat immediately prior to such transaction (other than the capital Credit Agreement stock or other ownership interests of such Restricted Subsidiary) are owned by such Restricted Subsidiary immediately after the consummation of such transaction or
(ii) subject to the satisfaction of the requirements set forth below, PanAmSat may merge with (A) any direct or indirect Wholly Owned Subsidiary of EchoStar or Hughes organized under the law of a State of the United ▇▇▇▇▇▇ of America pursuant to Section 3.1 of the Stock Purchase Agreement or (B) any direct or indirect Wholly Owned Subsidiary of Hughes or General Motors in a transaction designed to ma▇▇ ▇▇▇ Borrower a Wholly Owned Subsidiary of Hughes or General Motors, in each case so long as (▇) ▇mmediately prior to such transaction and after giving effect thereto (including the substitution of the New Borrower for PanAmSat as contemplated below), no Default shall have occurred and be continuing, (B) unless, in the case of a merger or consolidation pursuant to clause (i) or (ii) above, the surviving entity in any such transaction is PanAmSat itself, the surviving entity in any such merger or consolidation, or the Restricted Subsidiary to which PanAmSat shall have transferred substantially all of its assets (such surviving entity or Restricted Subsidiary, as applicable, being herein called the "New Borrower"), shall have assumed the obligations of PanAmSat hereunder and under the other Loan Documents pursuant to an instrument in form and substance satisfactory to the Administrative Agent and shall have executed and delivered to the Administrative Agent and the Collateral Trustee such proof of corporate or other action, incumbency of officers, opinions of counsel and other documents as is consistent with those delivered by PanAmSat pursuant to Section 4.01 on the Effective Date or as the Administrative Agent shall have reasonably requested, and shall have taken such action as the Administrative Agent shall have reasonably requested to continue and perfect the Liens granted by PanAmSat pursuant to the Security Documents in accordance with the requirements of Section 5.11, (C) the New Borrower, or (if such surviving entity is PanAmSat) PanAmSat, shall be a Wholly Owned Subsidiary of a Holding Company and shall, immediately prior to such transaction, not have any assets or liabilities (other than de minimis assets associated with the formation or such Subsidiary), (D) such Holding Company shall have executed and delivered to the Administrative Agent a Holding Company Pledge Agreement and (E) such Holding Company shall have executed and delivered to the Administrative Agent such proof of corporate or other action, incumbency of officers, opinions of counsel and other documents as is consistent with those delivered by PanAmSat pursuant to Section 4.01 on the Effective Date or as the Administrative Agent shall have requested, and shall have taken such action as the Administrative Agent shall have reasonably requested to perfect the Lien of the Holding Company Pledge Agreement in the capital stock or other ownership interests of the Borrower owned by the Holding Company. Upon the consummation of such transaction, and satisfaction of the requirements of clauses (A) through (E) of the immediately preceding paragraph, the New Borrower (except in the event of a merger or consolidation pursuant to clause (i) or (ii) above in which PanAmSat itself is the surviving entity) shall succeed to all of the rights and Credit Agreement obligations of PanAmSat hereunder and under the other Loan Documents, and PanAmSat shall be released from all of its obligations hereunder and under the other Loan Documents (other than, in the event that PanAmSat becomes the Holding Company, the obligations of PanAmSat under the Holding Company Pledge Agreement), and the Administrative Agent shall, and shall direct the Collateral Trustee to, execute and deliver such instruments (at expense of the Borrower), as the Borrower shall reasonably request to evidence such release;
(g) the Borrower and each its Restricted Subsidiaries may make Investments permitted under Sections 6.05(a), (d), (e), (g)(v), (k), (l) and (m); and
(h) the Borrower and its Restricted Subsidiaries may enter into leases (including any sales-type lease covering transponders) in the ordinary course of business and on ordinary business terms reasonably consistent with prior practice of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer Borrower and dispositions does not exceed $5,000,000 in any fiscal yearits Restricted Subsidiaries.
Appears in 1 contract
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, Person except for purchases or acquisitions of Investments inventory and other assets property to be sold or used in the normal ordinary course of business and Investments permitted under Section 6.05, provided that the day-to-day business activities aggregate purchase price in respect of the Borrower and its Subsidiaries and all such acquisitions shall not in violation of the terms and conditions of this Agreement or any other Loan Documentexceed $200,000,000. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsbusiness or property, whether now owned or hereafter acquiredacquired (including receivables and leasehold interests, but excluding (x) assets obsolete or worn-out property, tools or equipment no longer used or useful in its business so long as the amount thereof sold in any single fiscal year by the Borrower and its Subsidiaries shall not have a fair market value (determined in accordance with GAAP) in excess of $100,000, (y) any inventory or other than Investments) property sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day and on ordinary business activities of the Borrower and its Subsidiaries) terms), and (yz) subject to dispositions of business or property, the provisions aggregate fair market value (determined in Letter of clauses (dCredit and Reimbursement Agreement accordance with GAAP) and (e) below, Investmentsof which for all such dispositions shall not exceed $100,000,000 at any time. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantorsuch Subsidiary; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary GuarantorSubsidiary, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and if such transaction shall involve PUSA, PUSA shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer transfer, or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) any Subsidiary of the Borrower (other than PUSA and any Subsidiary that holds capital stock of PUSA) may liquidate, wind up or dissolve itself if the net worth of the Borrower and its Subsidiaries immediately after giving effect to such transaction shall equal or exceed such net worth immediately before giving effect to such transaction (with such net worth being consistently determined); and
(d) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 1 contract
Sources: Letter of Credit and Reimbursement Agreement (Set Top International Inc)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve or divide itself (or suffer any liquidation liquidation, dissolution or dissolutiondivision). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock Capital Stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly-owned Subsidiary Guarantor, but excluding the wholly-owned Subsidiary Guarantor shall be the continuing or surviving entity;
(xb) any Subsidiary Guarantor may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly-owned Subsidiary Guarantor;
(c) the Capital Stock of any Subsidiary of any Obligor may be sold, transferred (including a deemed transfer resulting from a division or plan of division) or otherwise disposed of to the Borrower or any wholly-owned Subsidiary Guarantor;
(d) the Obligors may sell or otherwise dispose of assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and ); 103 Revolving Credit Agreement
(e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose Dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) Concurrent Transaction the Covered Debt Amount does not exceed the Borrowing Base;
(ef) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose Dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) Concurrent Transaction the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release sale, transfer or other disposition is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release sale transfer or other disposition and any Concurrent Transaction is at least 110% of the Covered Debt Amount;
(fg) the Borrower may merge or consolidate with with, or acquire all or substantially all of the assets of, any other Person (including any Subsidiary Guarantor) so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect theretothereto and to any Concurrent Transaction, no Default shall have occurred or be continuing; and
(gh) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 1,000,000 in any fiscal year; provided, that in no event shall the Borrower enter into any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Prospect Floating Rate & Alternative Income Fund, Inc.)
Fundamental Changes. The Borrower will not(i) If any transaction or event, nor will it permit including any merger, consolidation, sale of assets, tender or exchange offer, reorganization, reclassification, compulsory share exchange or liquidation, dissolution or winding-up of the Subsidiary Guarantors toCompany, enter into any transaction of merger occurs in which all or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any substantially all of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course outstanding shares of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement outstanding Common Stock are converted into or any exchanged for stock, other Loan Document. The Borrower will notsecurities, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer cash or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of a distribution, subdivision or combination provided for in subsections 4.1 (a) and (b) above) (each, a “Fundamental Change”), each Warrant will automatically be adjusted upon such release Fundamental Change to be exercisable solely into the right to receive the kind and amount of consideration to which such Holder would have been entitled as a result of any such Fundamental Change had the Warrant been exercised immediately prior thereto. If holders of Common Stock are given any choice as to the stock, other securities, cash or assets to be received upon a Fundamental Change, then such Holder shall be given the same choice as to the consideration it receives. The Company will not effect any Fundamental Change (ywhere there is a change in or distribution with respect to the Common Stock) unless, prior to the Borrowing Base immediately after giving effect to consummation of such release is at least 110% of Fundamental Change, the Covered Debt Amount;successor Person (if other than the Company) assumes by written instrument the foregoing obligations.
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at Upon the time thereof consummation of a Fundamental Change, all Book-Entry Warrants and after giving effect theretoGlobal Warrant Certificates shall be deemed to have been surrendered to the Warrant Agent, no Default and all such Book-Entry Warrants and Global Warrant Certificates shall have occurred be promptly cancelled by the Warrant Agent and shall not be reissued by the Company. The Company or the successor Person shall promptly cause to be continuingissued, for each such previously outstanding Book-Entry Warrant and Global Warrant Certificate, a new Warrant exercisable for the kind and amount of consideration into which such surrendered Book-Entry Warrant or Global Warrant Certificate was exercisable as a result of the adjustment pursuant to Section 4.1(c)(i); andprovided, that, if such consideration includes cash, then the Company or the successor Person shall cause to be issued to each such Holder (A) the cash consideration for which such surrendered Book-Entry Warrant or Global Warrant Certificate was exercisable as a result of the adjustment in Section 4.1(c)(i), less the Exercise Price, and (B) a new Warrant substantially similar hereto exercisable for only the kind and amount of non-cash consideration for which such Surrendered Book-Entry Warrant or Global Warrant Certificate was exercisable as a result of the adjustment in Section 4.1(c)(i).
(giii) the Borrower The provisions of this Section 4.1(c) shall apply similarly and each equally to successive Fundamental Changes and shall be applied without regard to any limitations on exercise of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearthis Warrant.
Appears in 1 contract